We talked earlier this year about how Judge Hall permitted e-mail service of a complaint to a Taiwanese corporation under FRCP 4(f)(3), and we wondered whether this may be a reliable way to skirt cumbersome foreign service issues going forward.
As of Friday, the answer is still trending towards "yes." The previous case involved Taiwan, which is not a party to the Hague Convention. On Friday, Judge Noreika permitted service via e-mail on the U.S.-based counsel of a Korean entity—a party to the Hague convention—sidestepping the need to engage in cumbersome and time-consuming international service procedures:
Pursuant to Rule 4(f)(3), the Court may order that service be made by any means not prohibited by an international agreement, as long as the chosen means satisfies the due process requirement of being “reasonably calculated” to apprise the parties of interest of the action. . . . It appears that the Hague Convention neither addresses nor prohibits service via e-mail and the Court is unaware of any international agreement that prohibits service of process on a Korean corporation via e-mail to its U.S. counsel. In addition, having examined the current record, I find that service via e-mail to Abion and Gencurix’s U.S. Counsel, . . . which has represented that it “still represent[s] Gencurix and Abion” – is “reasonably calculated” to inform Abion and Gencurix about this action. . . . Ocimum may serve the summons and complaint on Defendants Abion and Gencurix via e-mail(s) . . . .
Short and sweet. Importantly, the U.S.-based attorneys for the defendant had previously accepted service in a related action, but protested that they were not authorized to do so again after that action was dismissed. The Court quoted their e-mail:
Yes, we still represent Gencurix and Abion. Since we are not authorized to accept service, you will need to serve them via the Hague.
It's not clear exactly how much impact these somewhat unusual facts had on the outcome. And, obviously, this is all tempered by the fact that the service must be reasonably calculated to apprise the parties. But it looks like FRCP 4(f)(3) will remain a useful tool to (greatly) speed up service to foreign countries who have U.S. counsel under the right circumstances.
This both a helpful decision for attorneys representing plaintiffs and an important read for defendants' attorneys. If you represent a foreign defendant and it's U.S. subsidiary, it would be a good idea to keep it in mind and think carefully about how you word your e-mails.
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