[Originally published at vikinglaw.us]
A debate is simmering in the service of process community, and should come to a rolling boil in the next several years: whether process can be legally served by electronic means. Frankly, it ought to be—not just because it is so simple—but because it fulfills the constitutional standard much more effectively than other less practical means.
That standard? In Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Supreme Court held that service of process must be effected by a means reasonably expected to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges.
Traditionally, service by publication has been used to “put the whole world on notice” of a claim where a defendant could not be located. For many years after Mullane, publication was really a plaintiff’s last (remotely) reasonable resort. Absent finding an address by dumb luck or just happening to catch a defendant on the street, not many options were left.
In reality, the method is not reasonably calculated to do anything but increase publishers’ revenue. Its effectiveness is a gross legal fiction. [Honestly, how many people read legal notices in the paper anymore, if ever? For that matter, how many people read “the paper” anymore?]
Nowadays, though, email and social media platforms have become all but ubiquitous. No business can expect to remain a going concern if it lacks an internet presence. And only the most impoverished individuals—aside from militant Luddites and the very aged—lack an email address. Yet the lion’s share of courts still reject electronic service, opting to mandate more traditional methods: personal delivery by a process server, registered mail (ahem, good luck with that), and the all-but-useless publication.
Some states are slowly coming on board and allowing e-service to registered agents or to evasive defendants. The real progress in case law is at the federal level, especially as to defendants located abroad. The Federal Rules of Civil Procedure take particular care to codify the Mullane standard in Rule 4(f), which governs service on defendants located outside the United States, and 4(f)(3) specifically has been held to render “other means not prohibited by international agreement” just as valid as service effected by more traditional means. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007, 1015 (9th Cir., 2002).
By its own terms (Article 1, right up front), the Hague Service Convention is specifically inapplicable where a defendant’s address is unknown, and the Inter-American Convention on Letters Rogatory & Additional Protocol is not a treaty whose effect is mandatory (these are the only two treaties on service to which the U.S. is signatory). If the defendant is known to be abroad, but his/her/its address cannot be ascertained, email cannot then be prohibited by international agreement. Accordingly, courts have wide latitude to authorize service by email, especially where the plaintiff has diligently searched for the foreign defendants. [For a thorough analysis of such a case, see D. Light Design, Inc. v. Boxin Solar Co., Ltd., unreported, No. C-13-5988 EMC (N.D. Cal., 2015).]
Look for the validity of email service to grow, especially where it becomes considered a Postal Channel under Hague Article 10(a)… more on that at a later date. For now, a couple of practice tips…
- Practice Tip #1: This idea can be awfully handy with Russian defendants… the Hague Service Convention is ineffective with Russia, so request leave of court and click send.
- Practice Tip #2: When drafting a contract with a foreign party, don’t just designate an agent for service here in the United States… designate an agent and stipulate that they can be served electronically!
Update, August, 2018… for later developments, see my latest post, Twitter Service Hits the Bigtime.
Update, March, 2022… a client kindly forwarded my a great law review article from Pace Law on how it’s done in New York. C.P.L.R. § 308(5) is the New York analog to FRCP 4(f)(3). Whether in state or federal court, the plaintiff absolutely has to be cognizant of e-service’s invalidity under the Hague Service Convention, even contrary to some very bad, no good, horrible case law in S.D.N.Y.