I wrote almost a year ago about Missouri v. China, which I called the “unmeritorious case of the day.” This is the case brought by the state of Missouri against the Chinese government, the Chinese Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences, alleging that the COVID-19 pandemic is “the direct result of a sinister campaign of malfeasance and deception carried out by the Defendants.” When we think, a year later, about the reasons the pandemic has been so bad in the United States, “blame China” seems quaint. Anyway, as I observed in the prior post, leaving aside everything else wrong with the case, it was going to be a challenge to serve process on the defendants, and that’s how it turned out. After China predictably refused to execute a letter of request under the Service Convention on Article 13 grounds, Missouri has recognized that it is going to need to serve process on the governmental defendants via diplomatic channels as prescribed in such cases under 28 U.S.C. § 1608. And after first saying that it would seek to serve all defendants under the FSIA, Missouri now seeks leave under FRCP 4(f)(3) to serve process on the Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences by email.

Because motions like this are almost always heard ex parte, without giving the court the benefit of the arguments against alternate service, I’ve prepared this post as a kind of informal amicus brief, which perhaps some enterprising clerk in St. Louis will find. I suppose I could seek submit an amicus brief directly, but that seems uncool to me and would, I think, put me in bad company when you consider the lawyers who seek to inject themselves into politically salient cases. Anyway, here for what it is worth is the argument that shows that Missouri’s motion must be denied.

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