Section 1783 Case of the Day: Eletson Holdings v. Levona Holdings

The case of the day is Eletson Holdings Inc. v. Levona Holdings Ltd. (S.D.N.Y. 2025). Eletson sought confirmation of an arbitral award. Levona sought to have the award set aside, on the grounds that, according to Levona, documents Eletson had not produced in the arbitration but had produced in a later bankruptcy proceeding showed that Eletson had offered fraudulent testimony in the arbitration. Intervenors in the case sought leave under 28 U.S.C. § 1783 to serve a subpoena on Peter Kanelos, a US citizen or resident who was in Greece, who was a participant in the communications that had been produced in the bankruptcy.

Section 1783 is (at least in my experience) rarely used. The statute provides:

A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.

The first question I ask lawyers who call me for help obtaining evidence abroad is: is the target a US national or resident?1 Usually the answer is no. Sometimes it is yes, and then we have to consider whether it makes sense to use the statute. The answer is usually “no,” because many US nationals live abroad and do not return to the US regularly. In such cases, the subpoena (which the US court cannot enforce abroad) carries little oomph, and it is not practical or cost-effective to try to monitor the witness’s travel for purposes of bringing contempt proceedings. I say the answer is usually “no.” In fact, I do not think I have ever seen a case where I recommended using the statue. But as today’s case shows, sometimes people try.

The statute has three requirements. First, the witness has to be a US national or resident. Second, the subpoena has to be necessary in the interests of justice (this is traditional language from traditional letters rogatory). Third, there must be no other way to obtain the evidence in a form admissible at trial.2

The judge reviewed the sparse precedent on the statute. “Necessary in the interests of justice,” he wrote, is a squishy analysis that looks at the totality of the circumstances. He held that the evidence was necessary in the interests of justice, for reasons that I am not going to focus on here. The key, though, was whether the intervenors had shown that there was no other way to obtain the evidence. The problem is that Greece is a party to the Evidence Convention. On this point, the intervenors say that pursuing that route would take longer than the case schedule permits. I question whether proceedings under § 1783 would, in practice, lead to obtaining the evidence any quicker. But the intervenors had sought to issue other letters of request under the Convention in the case, which the judge thought undercut their argument. The judge also pointed out that the intervenors had not shown any efforts to obtain Kanelos’s evidence without compulsion, either in Greece or elsewhere. Note that Greece has not objected to the non-compulsory methods of Chapter 2 of the Convention (for our purposes, notably, depositions by a commissioner and consular depositions). To the contrary, Greece has declared, under Article 18, that commissioners etc. can apply for compulsory aid under Greek law.

Let me add one procedural wrinkle about § 1783. The statute requires that the subpoena be served under FRCP 4, and the Service Convention requires that it be served by a method authorized or permitted under the Convention (because the subpoena is a judicial document). Greece does not permit service by alternate means under the Convention, and so even if FRCP 4 permits service by post in the circumstances, the intervenors would have to request that the Greek central authority serve the subpoena. Again, I question whether any of this is faster than making a request under the Evidence Convention.

#Greece #HagueEvidenceConvention #HagueServiceConvention #subpoena

Case of the Day: Chanel v. Individuals on Schedule A

The case of the day is Chanel, Inc. v. Individuals, Business Entities and Unincorporated Associations Listed on Schedule A (S.D. Fla. 2025). This is a typical internet luxury good knockoff case. There are a lot of these cases nowadays. It’s usual for the plaintiff to sue a long list of seemingly dodgy foreign people and entities in a single lawsuit, to serve process by alternate means, and to ask for and often receive a preliminary injunction.

Today’s decision is one of the lazier of the genre. The judge authorized service by email and the web on the Schedule A defendants. I don’t really blame judges entirely for lazy decisions in these cases, because they the service issue is generally before the court on an ex parte motion. But some judges have managed to get the issues right, and more judges should look into the relevant law to make sure they are getting this right.

The first thing a judge should ask, when asked for leave to serve process by email or via the web, is: does the Hague Service Convention apply? That depends on whether the defendant’s address is known (and whether the plaintiff has used sufficient diligence to learn the defendant’s address, which is a little squishy), and for a defendant whose address is known, whether it is in a Convention state. Today’s decision is silent on those key questions. Why? Because the judge took the shortcut that many of the older cases, going back to Gurung v. Malhotra, took. She reasoned that the Convention simply doesn’t bar service by email, even in states that have objected to service under Article 10’s provisions on alternate methods of service. I’ve addressed this point many times, including in a haiku, and Bill Dodge and Maggie Gardner have done likewise. Here is the reason in summary:

Here is the haiku:

#Email #HagueServiceConvention

Bill Dodge on Serving US Counsel

Friend of Letters Blogatory Bill Dodge has a good post at the Transnational Litigation Blog about serving process on foreign defendants by serving their US counsel. This is one of the great Letters Blogatory conundrums. I have gone back and forth about the issue. That’s one of the blessings and curses of blogging. You can go back and read my posts about this and see how my thinking changes over time and see how I try to work through the issue. Or you can read posts that say wildly different things and say, “this guy doesn’t know what he’s talking about.”

The basic problem is that most plaintiffs who try this ask the court to authorize service on the US lawyer by way of a motion under FRCP 4(f)(3). That is a smart idea: rule 4(f)(3) allows courts to authorize alternate methods of service as long as they do not violate the Service Convention. By authorizing the service on a US lawyer (who, I assume, is in the United States), the court is authorizing a method of service that does not require transmission of the summons and complaint abroad for service. And so the Convention simply doesn’t apply.1Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …

But there is a textual problem. Rule 4(f) provides that “an individual … may be served at a place not within any judicial district of the United States” by the means described in the rule, including the alternate means allowed under Rule 4(f)(3). We can call this Schrödinger service: the service takes place “at a place not within any judicial district of the United States” in order to allow the plaintiff to use FRCP 4(f)(3), but the service takes place in the United States in order to avoid bringing the Service Convention into play.

Bill’s post covers Zobay v. MTM Group, an EDNY decision from March 2025. The magistrate judge had approved service on a Chinese defendant by service on its US counsel, but she understood that that method was permissible because the lawyer acted as “conduit.” But as I noted in the footnote, treating the lawyer as conduit doesn’t actually solve the problem, because if the lawyer has to transmit the document abroad for the service to be complete, then it is inconsistent with the Convention.

The district judge, affirming the magistrate judge’s decision, tried to solve the problem by looking to FRCP 4(e)(1), which governs service in a judicial district of the United States and which incorporates state law methods of service. Apparently, New York law allows service on a corporation by service on the US lawyer, and it treats the service as complete when the lawyer receives the documents, not when the lawyer transmits the documents to the client.

Bill approves of the decision, and I suppose I do, too. But I think the judge’s discussion gets the due process issue backwards in a way. Due process does not require that a particular piece of paper be put into the defendant’s hand. It requires that the defendant have notice and an opportunity to be heard.2Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard. If the US lawyer telephones the Chinese defendant and says, “you’ve been sued; here’s what the plaintiff is saying; we have 21 days to answer the complaint,” that would seem to me to suffice for due process purposes, even if the lawyer does not transmit the papers to the defendant. The lawyer is supposed to be a conduit for the information that is important to the defendant, not necessarily the documents themselves. On the other hand, if the lawyer receives the papers but never communicates with the defendant about their contents, then the service may be complete, but there is a problem with actual notice. (Whether that’s a due process problem depends, I guess, on whether you think that the lawyer’s knowledge gets attributed to the client for constitutional purposes, but at least it’s clear that in this scenario there’s no notice to the defendant in fact). So I think it would be better to say that the service is permissible under FRCP 4(f)(3), not because the lawyer has to transmit documents to the defendant, but because the lawyer is going to inform the defendant of the important facts. And if the service is complete on delivery of the summons to the lawyer, then there’s no reason the lawyer can’t send a copy of the summons to the defendant in China, because he is not transmitting it abroad for service: the service was already complete. If this is right, then New York law provides no special benefit not available in any case in federal court.

• 1 Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …
• 2 Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard.

#China #HagueServiceConvention

Case of the Day: Missouri v. China

During COVID I wrote about what I regarded as an absurd case: the state of Missouri suing China and Chinese government instrumentalities for damages arising from the pandemic. I thought the case was absurd mainly because of foreign sovereign immunity, but also because the service of process on the two arguably non-governmental defendants was bad. But we live in absurd times, and as I reported in an earlier post, after the district court dismissed the action on FSIA grounds, the Eighth Circuit revived one of the claims, a claim that China had hoarded PPE by nationalizing factories that had been producing PPE for US firms, thus violating US antitrust law and Missouri law. On remand, the district court has now granted a default judgment for Missouri for nearly $25 billion in damages. I continue to think this is a case that should never have been brought. And although the case attracted some amicus attention, I think that US judges need to do better, in cases where the foreign state does not appear, to get the law of foreign sovereign immunity right, especially in such a politically fraught, high dollar-value case.

Service of Process

As we know, China and the United States are parties to the Hague Service Convention. The Supreme Court has held that the Convention is mandatory, or in the terms more often used internationally, exclusive. That means that if the Convention applies, then the plaintiff must serve process using one of the methods that the Convention authorizes, or at least permits. The Federal Rules of Civil Procedure reflect this rule. FRCP 4(f)(3) allows the court to authorize alternate methods of service, even if they violate foreign law, but not if they violate the Convention.

Missouri served process on the Chinese Communist Party, the Chinese Academy of Sciences, and the Wuhan Institute of Virology by email, after seeking and receiving permission from the court under FRCP 4(f)(3). Leaving aside the question of whether any of these defendants is an instrumentality of the Chinese state (it is hard to see how the Chinese Communist Party would not be at least an instrumentality of the state),1See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.

Foreign Sovereign Immunity

Although the district court originally dismissed the complaint in its entirety on FSIA grounds, the Eighth Circuit reversed as to one claim—the claim that China hoarded PPE in the early stages of the pandemic. The gist of the claim is that China nationalized factories that made PPE for American companies. The Eighth Circuit thought that that claim came within the commercial activity exception to foreign sovereign immunity. But that seems absurd to me, since nationalization of property is a quintessentially sovereign act, and it’s hard to think of a better example than nationalization of property in order to marshal resources to respond to a public health emergency. Looking to the nature of the act rather than the purpose, as the commercial activity exception requires, we must note that only governments can nationalize property; it’s not something a commercial enterprise can do.3There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.” So I think the premise of the Eighth Circuit’s decision was plainly wrong.

Reciprocal self interest

When we think about these cases, we have to think about what it would be like if the shoe were on the other foot. In 2021, the US and other western countries were accused of hoarding the COVID vaccine. Should the United States have been amenable to suit in China or elsewhere because it prioritized the public health needs of its own people? The technical term for taking seriously the question, “what if the shoe were on the other foot?” is comity. We need more of it.

• 1 See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.
• 2
• 3 There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.”

#China #Email #FSIA #HagueServiceConvention

Case of the day: Isaac Industries v. Petroquímica de Venezuela

The case of the day is Isaac Industries, Inc. v. Petroquímica de Venezuela, SA (11th Cir. 2025). Isaac, a Florida wholesale chemical distributor, had a contract with Bariven, a Venezuelan oil and chemical company “associated with or owned by” the state, to sell 2-ethylhexanol for nearly $3,000 per metric ton. Bariven ordered almost 6,000 metric tons of the chemical, and Isaac shipped it, issuing invoices after each shipment. Bavarian did not object to the invoices but also did not pay for the goods. That’s a big unpaid bill.

According to Isaac, after two years, representatives of Petroquímica de Venezuela, another potentially state-owned company, asked for a meeting. At the meeting, Pequiven undertook to pay Bariven’s debt with interest in return for a release of the debt (to become effective after Pequiven made all the required payments). The deal was memorialized in a written contract. Pequiven made the first payment due under the contract but then stopped paying.

Two years later, in 2017, following a disputed election, the United States recognized the 2015 National Assembly as the legitimate government of Venezuela, but the country’s de facto President, Nicolás Maduro, remained in power and effectively in control of the oil companies.

Isaac sued Pequiven, Bariven, and the main Venezuelan state oil company, PDVSA, for breach of contract. It sought to serve process via the central authority per the Hague Service Convention, but the central authority “never confirmed that it executed service.” A year into the lawsuit, Isaac moved for leave to serve process by alternate means. The court granted the motion. At that point, the defendants appeared and moved to dismiss, arguing that they were instrumentalities of the Venezuelan state and that service had to be made under the FSIA. They also argued that the complaint did not allege the case fell within any of the exceptions to foreign sovereign immunity. The court granted the motion to dismiss for insufficient service of process; the order said that the companies could “reassert the remaining bases for dismissal” later.

Rather than try service again, Isaac sought entry of a default judgment due to the lack of any response from the central authority, citing Article 15 of the Convention. Here is how the court described Article 15:

Article 15 permits a judge to enter a default judgment “even if no certificate of service or delivery has been received” so long as a plaintiff “transmitted” the service documents “by one of the methods” described in the Convention, “six months … has elapsed,” and “no certificate of any kind has been received, even though every reasonable effort has been made to obtain it.”

The magistrate judge found that all three conditions had been satisfied. Nevertheless, the magistrate judge (wisely, in my view) recommended denial of the motion for entry of default. No parties objected to the magistrate judge’s report and recommendation. The court adopted the R&R, denying the motion for entry of default, but it also dismissed the complaint on FSIA grounds and ordered Isaac to file an amended complaint that alleged an exception to foreign sovereign immunity. It also “prohibited the oil companies from ‘re-asserting a challenge to service of process.'”

Isaac filed an amended complaint that alleged that the case fell within the commercial activity exception for foreign sovereign immunity. PDVSA moved to dismiss based on immunity grounds, and the court granted. But neither Pequiven nor Bariven squarely denied the allegation that the case arose out of commerical activity in their answers: instead, they “stated that the allegations about the commercial activity exception required no response because they called for a ‘legal conclusion.'” Nor did they raise insufficient service of process as an affirmative defense.

Isaac moved for summary judgment, the court granted the motion, and Pequiven and Bariven appealed. One ground for the appeal was a lack of personal jurisdiction; the oil companies argued that the court had lacked jurisdiction because they had not been properly served. It’s true that the two had challenged service of process in the lower court, but when the magistrate judge found that the requirements of Article 15 had been met, they did not object, and under ordinary procedural principles, a failure to object to a magistrate judge’s decision waives the right to challenge the decision on appeal. So the court affirmed the judgment.

I get it, but I am not 100% sure the decision is right. After all, at the time of the magistrate judge’s recommendation, the court had already held that service of process was insufficient, and that decision came more than a year into the lawsuit (and likely many months if not a year after Isaac had transmitted the papers to the central authority for service). And Isaac didn’t try to effect service of process after that dismissal, but instead looked to Article 15 as a kind of fallback. The magistrate judge didn’t find that service had been proper; he found that judgment could be given despite the lack of evidence that service had been effected. To my mind, there was enough doubt about what were the implications of the magistrate judge’s recommendation that it would have been reasonable for court to review the service question in the interests of justice.

#defaultJudgment #FSIA #HagueServiceConvention #Venezuela

Paper of the Day: Gardner and Dodge on the Email and the Service Convention

Friends of Letters Blogatory Maggie Gardner and Bill Dodge have a great new paper on service by email under the Service Convention . The paper is a very good overview of the topic and very clear about the difference between service that the Convention authorizes and service that it permits and the exclusive or mandatory nature of the Convention. And happily but not surprisingly, it reaches the right conclusion: service by email is permissible, when the Convention applies, only if the state of destination has not objected to service by postal channels;1With a caveat about Articles 11 and 19, which I mention below. and it may not be permissible then, depending on the view you take about whether email comes within the scope of the postal channel. I love flow charts, and this article has one—a helpful reference for judges and lawyers about how to think about the issue.

Bill and Maggie raise an interesting question about whether FRCP 4(f)(1) authorizes service by email when the receiving state has not objected to service by postal channels. This is not really a question just about service by email, but about service by any alternative means of service referenced in Article 10.

My own view is that the Convention authorizes only service via the main channel, i.e., via the central authority. It permits various alternatives, but it does not affirmatively authorize them. I think this is clear (at least in the US) from Water Splash v. Menon, where the Court said:

In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with … the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.

The implication is that yes, you do need leave of court to serve process by email under FRCP 4(f)(3). You might wonder why you don’t need leave to serve process via a solicitor in the UK, or via a process server in Canada, since in both cases the service is permissible under Article 10 of the Convention. The answer is that in those cases, the foreign process server is going to serve by a method that the foreign law authorizes in its own domestic actions (FRCP 4(f)(2)(A)) or delivering the papers to the defendant (FRCP 4(f)(2)(C)(i)).

But this raises its own problems. Bill and Maggie take the view that FRCP 4(f)(2) simply doesn’t apply when the Convention applies, since (they say) the Convention is not an agreement that “allows but does not specify other means.” That seems to me not to be right. Article 10 doesn’t actually specify the means of service. It provides for channels of transmission. This is clearest in Articles 10(b) and (c). Article 10(b) provides that documents can be transmitted for service by competent persons in the state of origin to competent persons in the state of destination, without specifying the method of service. Article 10(c) provides that documents can be transmitted for service by an interested person in the state of origin to competent persons in the state of destination, again without specifying the method of service. Article 10(a) provides that documents can be transmitted directly to the defendant through the postal channel without specifying the method of service. (It doesn’t specify whether the service must be by registered mail; it doesn’t specify whether a signature acknowledgment is required; etc.). At least that’s how I see it.2Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)

In this sense, Article 10 fits in nicely with the Convention as a whole. Even the main channel of transmission, the central authority, isn’t about specifying methods of service, but rather about specifying the channels through which you can transmit a document abroad for service.3Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

Bill and Maggie are careful to note that two other provisions of the Convention, Articles 11 (on bilateral agreements) and 19 (on foreign law expressly providing for receipt of documents coming from abroad for service) could provide a basis for service by email. I am not sure how important either of those is in practice, but more fundamentally, I would note that both refer to methods of transmission of documents for service, not to methods of service. I don’t think I’d noticed that point before, and so I would be hesitant about relying on whatever I’ve written in the past on Article 19.

• 1 With a caveat about Articles 11 and 19, which I mention below.
• 2 Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)
• 3 Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

#Email #HagueServiceConvention

Case of the Day: ECS Brands v. Brubeck

The case of the day is ECS Brands, Ltd. v. Brubeck (D. Colo. 2024). ECS sought confirmation of an arbitral award against Michael Brubeck, who resided in the Czech Republic. It moved for an order directing the clerk to sign a request for service under the Service Convention.

Under the Convention (art. 3), a request for service must be forwarded by an “authority or judicial officer competent under the law of the State in which the documents originate.” The law of the state of origin determines competence. The US position is liberal:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. The United States Central Authority plays no role in service requests involving persons or parties located abroad in private litigation matters and such requests are transmitted by the forwarding authorities in the United States directly to the requested State.

It used to be that some foreign central authorities balked at executing requests for service signed by US lawyers. That’s understandable, because in most states lawyers do not make requests under the Convention. The Special Commission has helped dispel the problem in conclusions and recommendations, for example, C&R 86 of 2024 (“The SC recalled that it is for the law of the requesting State to determine the competence of the forwarding authorities (Art. 3)”) and a similar C&R in 2003. So when I was still handling service matters myself, I would often ask a clerk to sign a request.

Nowadays my sense is that is less necessary or useful, but it is nevertheless surprising to see a court deny a request to have a clerk sign the request, as the court did here. Perhaps (I do not know) the central authority in the Czech Republic has been reluctant to accept requests forwarded by American lawyers?

I suspect the reason for the decision is not so much about the request for the clerk to sign the form, which in my experience anyway typically doesn’t require a motion, but the other odd things ECS requested. It wanted the clerk to provide certified copies of the papers (it’s not necessary to serve certified copies, and in any even you don’t need to make a motion to get certified copies of papers; you just need to ask and pay the fees) and to “correlate” the certified copies with “yet-to-be-provided “certified … translations,” and then to send them abroad via certified mail. This kind of request, which is out of the ordinary and maybe somewhat onerous, is likely to get a judge interested in shielding the clerks.

Counsel who are serving documents abroad and aren’t expert in it ought seriously to consider outsourcing. That’s not a pitch for business. Seriously, don’t call me, I will thank you but refer you elsewhere, most likely to Viking Advocates, who in my view are the real experts on service abroad in practice.

#CzechRepublic #HagueServiceConvention

Case of the Day: Patel v. Pal USA

The case of the day is Patel v. Pal USA, Inc. (D. Nev. 2024). Patel sued Pal USA and its parent, Paltronics Australasia, Pty Ltd., for trademark infringement. Patel served the summons and complaint on Pal USA by mailing them to its registered office. Pal USA’s president and registered agent for service of process, Cooper, was also Paltronics Australasia’s CEO. So when Paltronics Australasia moved to dismiss for insufficient service of process, Patel argued that the service on Pal USA was essentially service on Cooper, which was service on Paltronics Australasia (because you can serve a corporation by serving its officer).

It shouldn’t be surprising that the court rejected the argument. Patel didn’t really serve Cooper but rather served Pal USA by mail. The case might have been closer it Patel had served Pal USA by handing Cooper the documents, but even then, handing the document to an officer in the United States is not one of the methods authorized by FRCP 4(h)(2) and 4(f).1I say the case might be closer because I wonder if there is an argument that the foreign corporation in this situation is served in the United States, and that FRCP 4(h)(1) applies rather than FRCP 4(h)(2). If that is so, then service on the officer is good service.

Patel pointed to Volkwagenwerk AG v. Schlunk and argued that the Supreme Court had approved service on a foreign corporation by service on its US subsidiary. But that’s a misreading of the case, as the judge recognized. The point of Schlunk is not that service on a US subsidiary always works. It’s that if, under state law, service on the subsidiary is sufficient to serve the parent, then the Convention, which is exclusive but non-mandatory (in the HCCH’s preferred lingo) does not preempt state law. Schlunk,remember, reviewed the decision of an Illinois appellate court, not of a federal court. So FRCP 4 didn’t even come into play in the case.

• 1 I say the case might be closer because I wonder if there is an argument that the foreign corporation in this situation is served in the United States, and that FRCP 4(h)(1) applies rather than FRCP 4(h)(2). If that is so, then service on the officer is good service.

#Australia #HagueServiceConvention #ServiceOnSubsidiary

Case of the Day: AXS Group v. Internet Referral Services

The case of the day is AXS Group v. Internet Referral Services (C.D. Cal. 2024). AXS sued Amosa.app, a business that it claimed sold counterfeit AXS tickets online. Discovery revealed that Amosa.app was operated by someone named Altan Tanriverdi, who had an email address, a phone number, and a mailing address in Ankara, Turkey.

AXS sought leave to serve Tanriverdi with process by email, as its investigation had not “provided certainty” about his “present whereabouts.” The court noted the split of authority about how to handle service of email under the Service Convention but concluded that because the Convention does not authorize or permit it (Turkey objects to service by postal channels), and because the Convention is exclusive, the motion had to denied.

That’s all great, except that Tanriverdi’s address was unknown. So under Article 1, the Convention shouldn’t have applied. Perhaps one could make an issue about whether AXS had done enough to show that Tanriverdi’s whereabouts were unknown. In any event, while I appreciate every judge who gets the email question right, sometimes, the easy answer is the best answer. The court probably should not have denied the motion on the grounds it chose.

#Email #HagueServiceConvention #Turkey

Case of the Day: In re Marriage of Paddock and May

The case of the day is Paddock v. May (Wash. Ct. App. 2024). The husband and wife were married in the UK but later moved to Washington. The husband sought a legal separation in Washington, which was granted, and he moved to Wales. The husband’s lawyer withdrew from the case.

Washington law provides that six months after a decree of legal separation, the court, on motion of either party, must enter a decree of dissolution of the marriage. The wife moved for a decree of dissolution and served notice of the motion on the husband by mail. The court entered the decree, and the husband appealed, arguing that the service by mail was imprpoer.

The interesting question for Letters Blogatory readers is whether the Service Convention applied. Ordinarily this issue doesn’t come up, because service of documents in the course of a lawsuit is generally made, under FRCP 5 and state-law equivalents, on the party’s lawyer in the United States. Thus there is no occasion to transmit the document abroad.

But when a party is acting pro se and lives abroad, then service must be made on him, abroad. So the question arises whether the Convention applies. Article 1 provides that the Convention applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” There’s no real question that a divorce case is civil, and there’s no real question that they had to be transmitted abroad. So the Convention applies unless (1) the papers that were served were not “judicial documents,” or (2) the papers were not transmitted “for service abroad.”

The court answered the question straightforwardly with reference to the Supreme Court’s leading case, Volkswagenwerk AG v. Schlunk. There the court said that “service” means “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.” But the husband already had notice of the action: he brought the action. Schlunk suggests that the Convention simply doesn’t apply to service of the various documents that go back and forth, typically between lawyers, during the pendency of the action.

That’s the typical American approach, and it has a lot to recommend it practically. Litigation would be impossible if every motion, every discovery request, and every notice had to be transmitted via the Convention, particularly when a pro se party is in a state that has objected to service by alternate means.

But does this make sense of the Convention’s text? After all, the Convention also applies to the transmission of extrajudicial documents, which cannot be service of process in the strict sense.

The good news is that I have been writing Letters Blogatory for almost fourteen years, and so I don’t need to reinvent the wheel to start to figure out a view on this interesting question. Here is an excerpt from my chapter on service in the ABA treatise on international litigation, which I reprinted in a 2017 post:

In addition to the issue of which law governs the question whether there is occasion to transmit a document for service abroad, there is also an issue about whether a particular transmission of a document is a transmission for service abroad. This issue arises rarely, since in the overwhelming majority of cases applying the Hague Service Convention, the documents transmitted are the summons and complaint, and there can be no doubt that in such cases the transmission is for service. But the issue does sometimes arise in the service of process context. For example, in an in personam case within the admiralty or maritime jurisdiction, where a party seeks an attachment (e.g., attachment of a vessel), under Rule B of the Supplemental Rules for Admiralty or Maritime Claims, a default judgment cannot enter unless the plaintiff has served notice of the attachment on the defendant. The requirement of notice is distinct from the requirement of service of process. In Hyundai Merchant Marine Co. v. Grand China Shipping (Hong Kong) Co., the court held that the convention did not apply to transmission of the notice required by Rule B because service of the notice was not service of process in the strict sense. Another example is in the Pennsylvania state courts, where it is possible to commence an action by filing a praecipe for a writ of summons rather than a complaint. A plaintiff who files the praecipe instead of a complaint can serve process by serving the summons alone, without the complaint. One commentator has suggested that when the plaintiff later serves the complaint, the Hague Service Convention does not apply because the service of the complaint is not, under Pennsylvania law, service of process.

This view expressed in Hyundai and in the Pennsylvania commentary stems from a dictum in Volkswagen suggesting that the convention applies only to “service of process in the technical sense”:

The negotiating history supports our view that Article 1 refers to service of process in the technical sense. The committee that prepared the preliminary draft deliberately used a form of the term “notification” (formal notice), instead of the more neutral term “remise” (delivery), when it drafted Article 1. Then, in the course of the debates, the negotiators made the language even more exact. The preliminary draft of Article 1 said that the present Convention shall apply in all cases in which there are grounds to transmit or to give formal notice of a judicial or extrajudicial document in a civil or commercial matter to a person staying abroad. … (“La presente Convention est applicable dans tous les cas ou il y a lieu de transmettre ou de notifier un acte judiciaire ou extrajudiciaire en matiere civile ou commerciale a une personne se trouvant a l’etranger”). … To be more precise, the delegates decided to add a form of the juridical term “signification” (service), which has a narrower meaning than “notification” in some countries, such as France, and the identical meaning in others, such as the United States. The delegates also criticized the language of the preliminary draft because it suggested that the Convention could apply to transmissions abroad that do not culminate in service. The final text of Article 1 eliminates this possibility and applies only to documents transmitted for service abroad. The final report (Rapport Explicatif) confirms that the Convention does not use more general terms, such as delivery or transmission, to define its scope because it applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.

The view that the convention applies only to service of the summons and complaint and not to service of other documents accords with the view taken by some foreign courts, and several U.S. courts have reached the same conclusion in cases involving temporary restraining orders or preliminary injunctions, where the perceived need for speedy notice has led the courts to conclude that notices of injunctions or motions for entry of an injunction need not be served by a method prescribed by the convention even though they occur at the beginning of a case.

But there are good reasons to question whether Volkswagen should be read to mean that the convention should be construed so strictly. First, the convention applies whenever there is occasion to transmit a judicial or extrajudicial document for service abroad. Extrajudicial documents can be “transmitted for the purpose of service” using the same methods prescribed for transmission of judicial documents. It seems clear that documents involved in service of process, strictly defined, will always be judicial rather than extrajudicial documents. Thus if the convention should be construed as the Hyundai court suggests, then the convention’s reference to transmission of extrajudicial documents has no apparent meaning. Second, in French, Article 1 reads: La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié. “Signification” refers to service that must be made by personal delivery by a judicial officer or huissier, while “notification” refers to service that can be made by mail or even fax. Under the French Code de Procédure Civile, there are times after the commencement of an action when a document is served by notification (e.g. notification entre avocats). The better rule seems to be that the convention should apply whenever a judicial document has to be transmitted for service abroad, whether or not the document is “process” in the strict sense.

It occurs to me that there might be a way out of the practical problem that this view creates. Maybe the best answer is to limit the scope of the Convention’s exclusivity. We typically say that when the Convention applies, you must use one of the methods it authorizes or at least permits in order to serve the document abroad. But maybe it is better to say that when the Convention applies, and when the document to be served is “process” in the strict sense, the Convention is exclusive. I don’t mean to be suggesting that we import the common law way of thinking about writs etc. into the Convention. But we would be distinguishing between documents issued by the court that do something (allow the court to exercise jurisdiction, e.g., a summons; order someone to do something, e.g., an injunction or a subpoena, an order on a motion to compel discovery) from everyday litigation documents litigants issue to each other that don’t carry the force of a court order (requests for discovery, motions, or in other words, requests to the court for action). This line would not be simple to draw, because there are lots of documents that aren’t formally orders but that carry an “or else” with them. For example, take a request for admissions. You don’t have to respond, but if you don’t, you might be deemed to have admitted the matters in question. But it would solve the otherwise insoluble problem of the pro se litigant abroad.

Photo credit: Stedelijk Museum De Lakenhal (public domain)

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