[Originally published at vikinglaw.us. Author’s note: Whether in state or federal court, the plaintiff absolutely must 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.]
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 calculated to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges. At the core of Mullane was a highly critical view of publication– even seven decades ago, and that criticism is even more stark in today’s climate, where newspapers’ presence in society is waning with staggering speed.
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 no longer 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? See my July, 2022 rant about why publication is utterly ineffective here.]
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 many 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.
States are 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). [A cautionary note: Rio Properties involved a Costa Rican defendant, and today that would raise a conflict with the Hague Service Convention. But at the time, Costa Rica had not signed on to the Convention. That’s important, given e-service’s violent conflict with that treaty.]
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 an order from the 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!
- Practice Tip #3: If you anticipate the need to enforce your judgment abroad, I wouldn’t go down the e-service road. Instead, you’ll want to bite the bullet and serve pursuant to a Letter Rogatory. That’s the only practical method, outside Hague channels (and a few common law systems like Singapore and New Zealand), that demonstrably respects the law of the country in which the defendant is served.
Update, August, 2018… for social media developments, see 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).
Update, February, 2024… more terrible, horrible, no good case law develops every day that says it’s okay to serve electronically in a Hague country, particularly China. This is just flat-out wrong, and sooner or later, some appellate court, upon the petition of some foreign defendant, is going to smack the daylights out of some lawyer who tries to circumvent a mandatory and exclusive treaty.