Wolf Lambert via Wikimedia Commons.

Last week, in “Wrong reasoning, right result?“ I ranted a bit– criticizing the latest in a nationwide string of wrong decisions involving FRCP 4(f)(3).  At issue: whether courts can authorize service by email on defendants located in Hague Service Convention countries that object to Article 10(a).

My view is awfully straightforward– if the Convention applies, and the destination country objects to 10(a), then Nein.  没有。Нет.  ほぼ。 幾分。

Not no, but hell no.* 

In a bit of serendipitous timing, a colleague pinged me over the weekend and asked for my thoughts on this one:  “Judge takes rare step to help serve elusive Ghislaine Maxwell with lawsuit.”  I’m usually pretty skeptical about the New York Post, notwithstanding my intellectual affection for Alexander Hamilton (there’s a million things he hasn’t done, but just you wait), although this particular article set aside the editorial slant that often dims my view of A-dot-Ham‘s creation.  Seems there’s a problem locating a civil suit defendant in the Jeffrey Epstein debacle, so plaintiffs’ counsel rightly asked the judge for leave to serve her by electronic means under 4(f)(3).  Specifically:

(f) Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:  (3) by other means not prohibited by international agreement, as the court orders.

My response to the colleague who posed the question:

Sounds to me like exactly the situation Rule 4(f)(3) was designed for.  If the plaintiff can’t find her despite a diligent search (that’s usually where such a motion gets tripped up– they don’t search diligently) then the Hague Service Convention doesn’t apply.  Consequently, there’s no treaty-based argument that email service is inappropriate.  This one seems to be a valid application of the rule.

 

So why doesn’t the Convention itself apply?  Because they can’t find the defendant.  From Article 1:

This Convention shall not apply where the address of the person to be served with the document is not known.

If the Convention doesn’t apply, then electronic service creates no worry about fulfilling Justice O’Connor’s mandate in the Schlunk decision.  There’s no “occasion to transmit” the documents abroad.  There’s no worry about a hierarchy within Rule 4(f).  And there’s a pretty significant chance that the defendant’s due process rights will be fulfilled.**

As long as the plaintiffs can demonstrate that the defendant actually uses the electronic means authorized by the court, thumbs-up on this one.

* Whether it’s okay where the destination country doesn’t object is a different matter entirely, and quite arguable.  I have mixed views on that one… fodder for another post.

** From Mullane and Rule 4(f) itself… a means reasonably calculated to provide notice and an opportunity to defend.