It has never been easy to serve foreign corporate defendants with a complaint filed in U.S. federal court, but COVID-19’s global pandemic and regional shutdown orders have made it nearly impossible in many places to find anyone physically involved in the process . Contrary to popular belief, a district court recently clarified that the Hague Convention is not the only means of effectively serving foreign defendants. Unless specifically prohibited from doing so, courts may in certain circumstances grant permission to serve foreign defendants via email.
In Group One Ltd v GTE GmbH et al., Case No. 20-CV-2205 (February 3, 2021 EDNY), the court upheld previous decisions of the District Courts in the Second Circuit that the Hague Convention is not the only means let alone the most preferred means of serving a foreign defendant with a lawsuit pending in US federal court.
Service other than allowed under the Hague Convention
After filing the complaint of direct and induced patent infringement and violations of the Lanham Act (among other things) and an ex parte petition for injunction, the Group 1 plaintiff filed for an injunction. In their files, Group One asked permission to serve the foreign defendants via email. The court granted the TRO and granted an alternative service by email, with the plaintiff submitting the papers in support of the injunction “via the email addresses previously used for communication with the plaintiff, or via other e- Mail addresses in connection with the business of the defendant, of which it is known, has served plaintiff. “
Upon receipt of the documents, the defendants moved to dismiss the lawsuit under Rule 12 (b) (5), among other things, on the grounds that the email service was an inadequate litigation service. The court rejected the application insofar as it requested dismissal due to insufficient service of the proceedings.
In reaching its conclusion, the court relied on the key principle that a plaintiff is not required to use the Hague Convention central authority to serve a foreign defendant before seeking alternative modes of service. Lined. R. Civ. P. Rule 4 (f) regulates the litigation service for foreign defendants. Rule 4 (f) requires one of three types of service: (1) by an international agreement such as the Hague Convention; (2) when there are no internationally agreed means, or when an international agreement permits, but does not specify, other means by a method reasonably calculated to make a notice; or (3) in any other way not prohibited by international agreement.
Despite conventional considerations, which the Hague Convention controls wherever possible, the court stated that the Second Circuit Courts “have repeatedly recognized that there is no hierarchy under the subsections of Rule 4 (f)”. Therefore, plaintiffs are not required to attempt Hague Convention service before the court can order service under Rule 4 (f) (3).
Service via email can be sufficient
After finding that attempted service was not a requirement under the Hague Convention for the use of alternative forms of service, we examined whether the e-mail service was constitutionally appropriate and regular.
Rule 4 (f) (3) empowers a court to “design resources for a person abroad, as long as the ordered resources (1) are not prohibited by an international agreement; and (2) is consistent with constitutional notions of due process. “So the question arises as to whether the e-mail service is banned by an international agreement, and particularly in this case the Hague Convention. While the Hague Convention certainly provides for the use of a country’s central authority to provide delivery, it also allows for the delivery of processes in an alternative manner (e.g. “postal channels” in Article 10) if the signatory country does not object.
In accordance with a number of courts dealing with this issue, the Court at Group One Ltd has strictly interpreted this provision to give the courts the power to order alternatives if a signatory country objects only to the service resources listed in Article 10 collects resources not specifically listed in Article 10. Practitioners take note – not all US courts agree. For example, see the Northern District of Texas statement dated October 14, 2020 in Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip. Co. (No. 5: 20-CV-141-M-BQ2020, US Dist. LEXIS 189872). Since Germany (where the defendant was domiciled) only protested against Article 10, but not expressly against e-mail, the court ruled that “service by e-mail to the defendant as an alternative service under Rule 4 (f) (3 ) can apply. . ”
Finally, the court also found that “[s]E-mail delivery alone is due process whereby a plaintiff demonstrates that the e-mail is likely to reach the defendant. “Importantly, the court recognized that while the global pandemic does not change the analysis, it supports the conclusion that email services are a valid option as businesses around the world rely on email to conduct business , and possibly the “most efficient way of doing it” is operation. Although emails can be lost in a defendant’s spam folder compared to postal mail, emails are more reliable. “
Given the current home stay orders in many parts of the US and Europe and the delays in overseas delivery by central authorities, plaintiffs in the US who need to serve foreign defendants should consider obtaining court approval for the first Obtain delivery by email.