Friend of Letters Blogatory Bill Dodge has a good post at the Transnational Litigation Blog about serving process on foreign defendants by serving their US counsel. This is one of the great Letters Blogatory conundrums. I have gone back and forth about the issue. That’s one of the blessings and curses of blogging. You can go back and read my posts about this and see how my thinking changes over time and see how I try to work through the issue. Or you can read posts that say wildly different things and say, “this guy doesn’t know what he’s talking about.”

The basic problem is that most plaintiffs who try this ask the court to authorize service on the US lawyer by way of a motion under FRCP 4(f)(3). That is a smart idea: rule 4(f)(3) allows courts to authorize alternate methods of service as long as they do not violate the Service Convention. By authorizing the service on a US lawyer (who, I assume, is in the United States), the court is authorizing a method of service that does not require transmission of the summons and complaint abroad for service. And so the Convention simply doesn’t apply.¹Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …

But there is a textual problem. Rule 4(f) provides that “an individual … may be served at a place not within any judicial district of the United States” by the means described in the rule, including the alternate means allowed under Rule 4(f)(3). We can call this Schrödinger service: the service takes place “at a place not within any judicial district of the United States” in order to allow the plaintiff to use FRCP 4(f)(3), but the service takes place in the United States in order to avoid bringing the Service Convention into play.

Bill’s post covers Zobay v. MTM Group, an EDNY decision from March 2025. The magistrate judge had approved service on a Chinese defendant by service on its US counsel, but she understood that that method was permissible because the lawyer acted as “conduit.” But as I noted in the footnote, treating the lawyer as conduit doesn’t actually solve the problem, because if the lawyer has to transmit the document abroad for the service to be complete, then it is inconsistent with the Convention.

The district judge, affirming the magistrate judge’s decision, tried to solve the problem by looking to FRCP 4(e)(1), which governs service in a judicial district of the United States and which incorporates state law methods of service. Apparently, New York law allows service on a corporation by service on the US lawyer, and it treats the service as complete when the lawyer receives the documents, not when the lawyer transmits the documents to the client.

Bill approves of the decision, and I suppose I do, too. But I think the judge’s discussion gets the due process issue backwards in a way. Due process does not require that a particular piece of paper be put into the defendant’s hand. It requires that the defendant have notice and an opportunity to be heard.²Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard. If the US lawyer telephones the Chinese defendant and says, “you’ve been sued; here’s what the plaintiff is saying; we have 21 days to answer the complaint,” that would seem to me to suffice for due process purposes, even if the lawyer does not transmit the papers to the defendant. The lawyer is supposed to be a conduit for the information that is important to the defendant, not necessarily the documents themselves. On the other hand, if the lawyer receives the papers but never communicates with the defendant about their contents, then the service may be complete, but there is a problem with actual notice. (Whether that’s a due process problem depends, I guess, on whether you think that the lawyer’s knowledge gets attributed to the client for constitutional purposes, but at least it’s clear that in this scenario there’s no notice to the defendant in fact). So I think it would be better to say that the service is permissible under FRCP 4(f)(3), not because the lawyer has to transmit documents to the defendant, but because the lawyer is going to inform the defendant of the important facts. And if the service is complete on delivery of the summons to the lawyer, then there’s no reason the lawyer can’t send a copy of the summons to the defendant in China, because he is not transmitting it abroad for service: the service was already complete. If this is right, then New York law provides no special benefit not available in any case in federal court.

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  Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …
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  Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard.