The case of the day is Safavieh International, LLC v. Chengdu Junsen Fengrui Technology Co. (SDNY 2023). Safavieh was a New York rug design company. It alleged that Chengdu Junsen Fengrui, a Chinese rug company, was selling rugs on Amazon that infringed its design copyrights. Safavieh began by serving Amazon with a “takedown notice” under the Digital Millennium Copyright Act. But Chengdu served a counter-notice under the DMCA. In the counter-notice, Chengdu arguably consented to personal jurisdiction in any jurisdiction where Amazon is found and also “agree[d] to accept service of process from the person who provided notification under subsection (c)(1)(C) [of the DMCA] or an agent of such person.” Safavieh then sued for copyright infringement and moved for leave to serve process by email sent to the address Chengdu provided in its counter-notice.

The judge did a great job with this motion. Here is how she began:

In essence, Plaintiff argues that it should be able to serve Defendants by email because it would be “extremely difficult and time-consuming” to serve them in China pursuant to the methods stated in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Unfortunately, Plaintiff is stuck with “extremely difficult and time-consuming.”

These are words to live by. The Convention is a treaty, a bargain between nations, that does simplify the process of serving process abroad, but that also commits the United States and its courts not to allow methods of service that would violate the Convention.

For a moment, I thought the gist of the decision would be a rejection of the California rule of Rockefeller. “Chengdu could not consent to service via email unless email service were permissible under the Hague Convention. It is not.” When I read this, I hoped the judge was preparing to explain why a litigant can’t waive the requirements of the Convention. But she simply assumed that a litigant can’t consent to service that does not comply with the Convention, and she focused instead on whether service by email complied with the Convention. She agreed with the more recent cases, and incidentally with Letters Blogatory, that service by email in China does not comply with the Convention. Why? Well, the Convention is exclusive, which means that when it applies, you have to use the methods it authorizes or at least permits. Some judges have said that because the Convention doesn’t forbid service by email, it permits it. But that position fails to take seriously China’s objection to service via the postal channel, which is the only provision in the Convention that could even arguably support service by email. “It seems beyond the remit of this court, and against the principles of international comity, to decide that Chinese defendants can be served by email simply because an international treaty does not mention this post-treaty technological development—especially given China’s recent pronouncement that the method is impermissible.”

I particularly like this decision because it highlights the connection between two of Letters Blogatory’s recurring issues: service by email in countries that do not allow service by post; and waiver of the Convention’s requirements by private litigants. It’s like hitting the jackpot.