The case of the day is Henry F. Teichmann, Inc. v. Caspian Flat Glass OJSC (W.D. Pa. 2013). The facts of the case are not clear from the decision, but it appears that Caspian Flat Glass, the defendant, was a Russian company. Russia, as we know, has unilaterally suspended cooperation with the United States under the Hague Service Convention, and letters rogatory, while technically possible, are never effective in practice. Teichman sought leave to make service by email under FRCP 4(f)(3). The judge, understandably but wrongly, granted the motion. Rule 4(f)(3) authorizes the court to grant leave to serve process by means that violate the foreign law, but not by means that violate applicable international agreements. Here, the judge concluded that the Convention does not prohibit service by email, citing In re Potash Antistrust Litig., 667 F. Supp.2d 907 (N.D. Ill. 2009), MacLean-Fogg Co. v. Ningbo Fastlink Equip. Co., 2008 WL 5100414 (N.D. Ill. 2008), and RSM Prod. Corp. v. Fridman, 2007 WL 1515068 (S.D.N.Y. 2007). As I noted in my 2011 year in review post on service by email, MacLean-Fogg was a case where the defendant’s address was unknown and the Convention therefore did not apply. RSM is not a service by email case, and it’s not clear to me why the judge cited it. As I noted in the prior post, I read Potash as a case about whether service by email in Russia specifically is permitted (perhaps under Article 19 of the Convention) because Russian law permits it; but it’s important not to confuse that point with a general, and, I think, erroneous statement that the Convention itself permits service by email. For the most recent statement of my view on service by email under the Convention, you can refer to my post on the PCCare247 case. I continue to be on the warpath about this.
I understand why judges don’t want to leave US plaintiffs with no good options for service of process in Russia. Russia’s refusal to comply with the Convention is highly problematic. But the Convention is pretty specific on this point. Under Article 14, “Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels.”