O’Connor, J.  Favorite daughter of Arizona and distinguished author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

The question mark in that headline only applies to half of the headline.

The result might be correct, depending on facts not articulated in the order, but the logic behind N.D. Ohio’s grant of leave to serve by alternative means in China is (to put it delicately) fatally flawed– an illustration of how “kinda-sorta-bad” law can evolve someday into extraordinarily-unquestionably-bad law.  In NOCO Company v. Shenzhen Lianfa Tong Technology Co., Ltd. et al. (1:19-cv-01855), the court issued the latest in a nationwide string of wrong decisions because, apparently, none of the lawyers in the room consider Sandra Day O’Connor an authority.

I’m serious. 

Directly quoting from the judge’s February 5 order:

  • The preferred method for service of a foreign party is service pursuant to the methods authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Fed.R.Civ.P. 4(f)(1).

Well, no, not exactly.  Hague methods aren’t the preferred methods of service on a foreign party.  If the Convention applies, they’re EXCLUSIVE.  Period.

Says who?  Says Justice O’Connor.  And, ironically, Judge Boyko, in his very next sentence.

  • “The Hague Convention is the exclusive method of effecting service between signatories to the convention.” Midmark Corp. v. Janak Healthcare Private Ltd., No. 3:14 CV 088, 2014 WL 1764704, at 1 (S.D.Ohio May 1, 2014) (citing Kreimerman v. Casa Veerkamp S.A. de C. V., 22 F.3d 634, 643–44 (5th Cir.1994)).*

The judge goes on…

  • Rulings on alternative service of process under Federal Rule of Civil Procedure 4(f)(3) are discretionary since “the plain language of the rule stipulates that a district court ‘may’ direct alternative means of service.”



Okay, sure– if there’s no treaty that supersedes the Federal Rules of Civil Procedure (all treaties supersede such rules, in case the Supremacy Clause has been forgotten).  But if adherence to Hague strictures is mandatory– and if Hague methods are exclusive– there’s nothing discretionary about 4(f)(3).  The court can’t go there.  The only way a court has the discretion to authorize alternative means under 4(f)(3) is if they do not conflict with the Hague Service Convention (right, Justice O’Connor?).

The farther I read into this order, the more it sets my teeth on edge.

Yet another flaw…

  • Federal courts have repeatedly found that email service is not prohibited by the Hague Convention.

Yes.  They’ve wrongly found that email service is not prohibited by the Convention.  I won’t get into the issue very deeply, except to point readers to the excellent commentary on the Gurung decision by Ted Folkman over at Letters Blogatory (holy crap, Gurung is soooooo wrong).  Simply put, the only way that email service could arguably be permitted by the Hague Service Convention is if it falls under Article 10(a)– which says the Convention doesn’t interfere with “postal channels.”  But the Convention does interfere with postal channel service if the destination country objects.

China objects, so it’s off the table.  Done.

The exclusivity of Hague methods, described by Justice O’Connor in Schlunk, combined with China’s objection to Article 10, makes the line of reasoning in the NOCO Company order absolutely baffling.

So why do I expect that the court still reached the right result here?  Because absent an address for the defendant, the Hague Service Convention– by its own terms (Article 1)– does not apply.  The order indicates that the plaintiffs undertook a good faith effort** to ascertain an address for the Chinese defendant, but they couldn’t find one, and that is a solid basis for granting the order.

I have no problem saying that electronic service (email, LinkedIn, Facebook, Twitter!) fully vindicates a defendant’s due process rights.  After all, it’s the 21st century.  We can no longer kid ourselves by thinking that publication is reasonably calculated to give sufficient notice to a defendant, but service by electronic means that a defendant clearly uses?  You better believe it’s constitutionally sound.

It just can’t happen if it conflicts with a mandatory and exclusive treaty.

* The reference to Kreimerman tickles my brain a bit.  The 11th Circuit distinguished the Hague Service Convention (“hey, it’s mandatory and exclusive, y’all!”) from the Inter-American Convention on Letters Rogatory (“not mandatory, y’all, so go on ahead to 4(f)(3)!”).

** Strangely, the docket doesn’t provide the plaintiffs’ memorandum in support of their motion for alternative service.  As such, I can only speculate as to what sort of diligent search was undertaken.  If there’s any question, I can put them in touch with a great investigator.

Author’s note: this case came to my attention thanks to a post at the always-entertaining Above the Law.  In China At Your Service, Gaston Kroub offers that the NOCO order offers a glimmer of hope to IP litigants.  It really shouldn’t, and even if it does, that hope is tenuous at best– not just because the basis for the order is flawed.  Litigating may not always be the best course of action in the first place, as I discuss here— while bootstrapping commentary by Dan Harris at the China Law Blog.