Just Mad
Andre Hunter, Unsplash

Sorry to be so loud with that.

Well, no, actually. I’m not sorry. I tried to lay all this out last spring, but here we go again.

At least once a month– still– I’ll hear from a very well-meaning client, seeking to rein in costs and save his/her client a boatload of cash and time, asking me for help in a motion to serve by alternative means. My answer is always no.

What they mean by alternative means, unfortunately, is alternatives to the Hague Service Convention, and that’s just not tenable.*

I hate to be the bearer of bad tidings, but there are no alternatives to Hague service unless you’re seeking alternative means within the United States— or, if you’re a Canadian litigator, within Canada. If you’re doing that, the Hague Service Convention doesn’t apply anyway.

A couple of things to keep in mind:

  • There are alternative means within the Convention itself, but they’re only available if the destination jurisdiction hasn’t declared opposition to them.
  • Using those alternatives within the Convention is still compliant with the Convention. Direct access to a Dutch bailiff? Still Hague Service. Private service in England at the direction of a solicitor? Still Hague Service. Service by mail in Italy? Technically, still Hague Service– though I contend that it’s a bad idea when better options are available.

Yet we’re still seeing case after case where counsel pulls an abjectly, horrifically wrong-headed trial court order from a prior case, and uses that order as a basis for an alternative service motion. The biggest culprits: (1) seeking an order to serve via U.S. counsel pursuant to Rule 4(f)(3), and [2] electronic service pursuant to the same rule because “it’s just too hard, your honor.” Taking each in turn:

4(f)(3) service via U.S. counsel

I’ve said it ’til I’m blue in the face. Rule 4(f) applies to service at a place not within a judicial district of the United States. It’s linguistically impossible to tie 4(f)(3), then, to service on U.S. counsel. Nonsensical. Misguided. Dare I say… ? No, I won’t say what I’m really thinking. I elaborate on the nonsense here.

If you’re going for U.S. counsel, either it’s a straight-up agency argument under 4(e)(2)(C) for individuals– 4(h)(1)(B) for entities– or it’s valid under applicable state law. You’d better come loaded for bear with either argument.

E-service in China, India, Mexico…

This is the big one, because it is so ridiculous as to warrant scorn.** All of these efforts are based on some earlier court’s erroneous conclusion that (1) Rule 4(f) doesn’t lay out a hierarchy, and (2) the Hague Service Convention doesn’t expressly prohibit electronic service, so go ahead and serve that Chinese/Indian/Mexican defendant by email. Good on ye, counsel.

Well, it’s true that 4(f) isn’t a hierarchy of steps (contrast it with 28 U.S.C. § 1608, which does lay out a hierarchy for service on foreign governments and agencies). But that’s not the end of the analysis. Last I checked, U.S. Supreme Court opinions carry more weight than mere procedural rules, so Volkswagen v. Schlunk puts Hague strictures above 4(f) in the power rankings. There definitely is a hierarchy, and dammit, thou shalt follow it, so sayeth O’Connor, J.

And yes, the Hague Service Convention does prohibit electronic service– at least in countries that object to Article 10 (like China, India, Mexico… what I refer to as “5-O countries“).

Sure, it doesn’t specifically mention electronic service, because that wasn’t a thing in 1965 when the treaty was signed. Wanna know what else wasn’t mentioned? Stuff that was a thing in 1965. Carrier pigeons. Smoke signals. A message in a bottle (gratuitous homage to 70’s quasi-punk here).

Yet the aforementioned Madam Justice also said that the methods articulated in the Hague Service Convention constitute an exclusive list. SO DON’T GET CUTE.

Baseless rationale

But it’s just too hard, your honor. It’s expensive. It takes a long time.

(Yes, whining is implied in that.) Well, sorry, the judge should say. I’m not going to contradict clear precedent from One First Street– precedent that hasn’t been seriously questioned in almost forty years.

Just do it– and do it the right way.

* See “Do I have to go through the Hague?”

** See A caution to my clients: electronic service conflicts with the Hague Service Convention. Violently. See also Ted Folkman’s take following the 2d Circuit getting it right in December.