In recent posts on 3M Co. v. Christian Investments LLC and H-D Michigan, LLC v. Hellenic Duty-Free Shops, S.A., I opined that given that courts have jurisdiction to enter temporary restraining orders binding foreign defendants before service of process, they should also have jurisdiction to enter preliminary injunctions before service of process, as long as the defendant received constitutionally adequate notice and an opportunity to be heard. The basis for my view was that if we assume that a court may enter a TRO in such cases, there is no jurisdictional reason to treat preliminary injunctions differently.
I want to follow the train of thought a little farther and ask how a US plaintiff would go about providing constitutionally adequate notice to a foreign defendant in such cases. I’m assuming that the foreign defendant is located in a country that is a party to the Hague Service Convention. The Convention applies not just to service of summonses and complaints, but to “all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Moreover, the Convention is mandatory. Let’s assume that the foreign defendant has no attorney or other agent in the United States to whom constitutionally adequate notice could be given. So to give notice, the plaintiff seemingly would have to comply with the Convention. If the state of destination does not allow transmission by postal channels, or alternate means of service under Article 19, the plaintiff may be in a difficult spot, since use of the central authority almost certainly would not result in adequate notice in sufficient time to be useful.
What is the answer from the plaintiff’s perspective? Would the US court permit the plaintiff to disregard the Convention for this limited purpose? Could the foreign state punish the plaintiff for violations of its judicial sovereignty if the US plaintiff simply mails the documents to the defendant? All good questions! I’m not sure there’s a clear answer.