[Update, December, 2025… the 2d Circuit agrees, as covered by my friend and fellow transnational legal tour guide, Ted Folkman. To be sure, the conflict only arises in what I call “5-O countries”, but even where Article 10(a) postal channels are available, e-service is still a bad idea in most cases. ]
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[Author’s note: see Prof. Bill Dodge’s excellent– and more academic– take on this topic in “The Impossibility of Schrödinger Service” over at the Transnational Litigation Blog, May 7, 2025. The cat can be dead, or it can be alive. It can’t be both.]
Every once in a while, when a colleague is stymied by limitations to serving an offshore defendant, the thought comes to mind that “hey, I might try to get leave of court to serve the defendant’s U.S. counsel.” It’s a great idea, and if the judge signs off on it, I don’t see how it could be unreasonable under the Mullane standard. Getting to that point, though, is often done in an entirely wrong way: using FRCP Rule 4(f)(3) as a basis for the motion.
Why is that entirely wrong? Because 4(f)(3) doesn’t apply if service doesn’t take place abroad.
Continue Reading Service on U.S. counsel doesn’t arise from Rule 4(f)(3).
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.*
Continue Reading RIGHT reasoning, right result.
Two years ago, I wrote about the “coming of age,” if you will, of service by electronic means. Well, the idea just hit the bigtime with service on Wikileaks via Twitter.
Setting aside questions about properly identified
