Foreign Defendants, You’ve Got Mail! Substitute Service By Email Increasingly Permitted
Serving foreign corporate defendants with a complaint filed in a U.S. Federal Court has never been an easy task, but the COVID-19 global pandemic and regional shut-down orders have made finding someone to physically serve with process nearly impossible in many locations. Contrary to conventional wisdom, one district court recently made it clear that The Hague Convention is not the only means for effectively serving foreign defendants. Where not expressly prohibited, courts may grant leave to serve foreign defendants by email under certain circumstances.
In Group One Ltd v. GTE GmbH et al., Case No. 20-CV-2205 (Feb. 3. 2021 E.D.N.Y), the court reaffirmed prior decisions from the district courts in the Second Circuit that the Hague Convention is not the only means, let alone the most preferable means, for serving a foreign defendant with a lawsuit pending in U.S. Federal Court.
Service by Means Other than the Hague Convention Permitted
After filing its complaint alleging direct and induced patent infringement and Lanham Act violations (among other claims) and an ex parte motion for a temporary restraining order, the plaintiff Group One sought a preliminary injunction. In its papers, Group One sought permission to serve the foreign defendants by email. The Court granted the TRO and granted alternate service by email, requiring that the plaintiff serve the papers in support of the preliminary injunction “via the email addresses used to communicate with Plaintiff previously, or other email addresses associated with Defendants’ business that are known to Plaintiff.”
Upon receipt of the documents, the defendants moved to dismiss the action pursuant to, among other things, Rule 12(b)(5), arguing that email service was insufficient service of process. The court denied the motion insofar as it sought dismissal for insufficient service of process.
In reaching its conclusion, the court relied on the central tenet that a plaintiff is not required to use the Central Authority under the Hague Convention to serve a foreign defendant prior to seeking alternative modes of service. Fed. R. Civ. P. Rule 4(f) governs service of process for foreign defendants. Rule 4(f) requires one of three modes of service: (1) by any international agreement such as the Hague Convention; (2) if there is no internationally agreed means, or if an international agreement allows, but does not specify, other means, by a method that is reasonably calculated to give notice; or (3) by other means not prohibited by international agreement.
Despite conventional thinking that the Hague Convention controls where possible, the court explained that courts in the Second Circuit “have repeatedly recognized that there is no hierarchy among the subsections in Rule 4(f).” Thus plaintiffs are not required to attempt service through the Hague Convention before the court may order service under Rule 4(f)(3).
Service by Email Can be Sufficient
Having determined that attempted service under The Hague Convention service was not a prerequisite for using alternative forms of service, the Court evaluated whether email service was constitutionally adequate and proper.
Rule 4(f)(3) authorizes a court to “fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.” So, the question becomes is email service prohibited by an international agreement, and specifically in this case, the Hague Convention? While the Hague Convention certainly envisions the use of a country’s Central Authority to effectuate service, it also authorizes service of process through alternative means (for example “postal channels” in Article 10) if the signatory country does not object.
Falling in line with a number of courts to address this issue, the court in Group One Ltd, construed that provision strictly to mean that when a signatory country objects only to those means of service enumerated in Article 10, courts have the authority to order alternative means of service not specifically listed in Article 10. Practitioners beware—not all U.S. courts agree. See, for example, the Northern District of Texas’s opinion of October 14, 2020, in Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip. Co. (No. 5:20-CV-141-M-BQ2020 U.S. Dist. LEXIS 189872). Here, however, since Germany (where the defendant resided) objected only to Article 10, but not email explicitly, the court held that “service via email on Defendants may qualify as an alternative means of service under Rule 4(f)(3).”
Finally, the court also found that “[s]ervice by email alone comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.” Importantly, the court recognized that while the global pandemic does not alter the analysis, it lends support to the conclusion that email service is a valid option since email is relied on by businesses worldwide to conduct commerce and may be the “most efficient method to accomplish service. Although emails may get lost in a defendant’s spam folder, compared to postal mail, emails are more reliable.”
Given current stay at home orders in many parts of the U.S. and in Europe, and the delays experienced with service abroad through Central Authorities, plaintiffs in the U.S. needing to serve foreign defendants should consider seeking the Court’s authorization to serve by email in the first instance.