[Update: April 22, 2022: Aaaaand then he takes the opposite view, getting it wrong. See my new rant way down at the bottom.]
In the Western District of Texas– Waco, specifically– patent litigation has exploded as a result of the efforts of a single jurist: Hon. Alan D. Albright. Judge Albright’s ever-expanding docket is controversial, even drawing bipartisan ire from the Senate Judiciary Committee leadership. Say what you will about Albright, J.– he got this question right. In a pair of recent rulings,* Judge Albright denied leave to serve electronically where the defendants would be served in Hague-signatory countries. This merely recognizes what I hope the rest of the judiciary, at both the federal and state levels, gets its head around: opinions from One First Street hold sway.
In this instance, I mean Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 and 706 (1988) holds sway. But you’d be amazed at how many lawyers– and courts– get it wrong.
It’s not a difficult concept. The two holdings in Schlunk utterly destroy the arguments espoused in S.D.N.Y.’s Gurung decision and its progeny:
- If the Convention applies, thou shalt follow it. Period. (At 699)
- The methods laid out in the Convention are exclusive, so don’t get cute.** (At 706)
Strangely, though, frustrated litigants and their counsel seek over and over again to evade Justice O’Connor’s logic. And courts are starting to recognize more frequently Ted Folkman’s White Whale. Namely: a whole line of very, very, very flawed case law– including a terrible opinion in the California Supreme. Last year, N.D. Cal. got it right in a China service case. Most recently, W.D. Wash. hit the nail on the head in Amazon.com, Inc. v. Robojap Techs. LLC (2021), another China case. Says Ted about that one:
Amazon “argue[d] that because the Hague Convention says nothing express about email service and India only objected to service by postal channels, the Convention does not prohibit service by email.”
The court recognized the many recent cases—all at the district court level—that had permitted service by email in similar circumstances. But it recognized the clear error in Amazon’s argument, which “gets things backwards.” Since the lists of methods of service the Convention authorizes or permits is exclusive, any form of service “not expressly permitted by the Convention” is “impermissible and prohibited. To conclude otherwise would mean that the Hague Convention’s forms of service are not exclusive, contrary to the Supreme Court’s clear pronouncement on this subject.” Although many courts have given weight to states’ failure to object expressly to service by email, the judge recognized that “[b]ecause the Convention does not expressly permit email service, India had no reason or need to affirmatively reject it for it to be considered prohibited.”
That stems directly from the second Schlunk holding. The Convention’s methods are exclusive. Lots of lawyers and lots of judges get it backwards– the fact that electronic service isn’t prohibited doesn’t mean it’s permitted. ***
* ACQIS, LLC v. Lenovo Group Ltd. et al. and The Trustees of Purdue University v. STMicroelectonics International N.V. et al. [Hat tip to the fellows at Winston Strawn for their post on the story.] The ACQUIS ruling gets to an even deeper analysis regarding service on a state statutory official. I’ve written before that you can’t just serve the Secretary of State and call it good. Effective service depends on (1) where service is ultimately completed– at the secretary’s office or in the defendant’s hands overseas– and (2) whether that completion comports with due process. Oh, I could go on and on.
** Yes, yes, I know (Aaron’s rant coming here). She didn’t actually write don’t get cute… but that’s what lawyers do when they try to conjure up creative ways to get around the Convention. There are but three ways to “get around” the Convention: (1) serve in the United States rather than in the foreign country, (2) get the defendant to waive (good luck with that), or (3) dismiss the thing. Hear me well, dear reader… if you’re serving in a Hague country, YOU DON’T “GET AROUND” THE CONVENTION. So knock it off.
*** That is not to say electronic service is never permissible. It’s just not permissible where the Hague Service Convention applies and the destination country objects to Article 10. If the Convention doesn’t apply… game on.
April 22, 2022… now this, again from the good folks at Winston & Strawn. Quoting W&S here…
In authorizing alternative service, Judge Albright was motivated, at least in part, by the delay Hague service has presented to Sinox. As of the date of the order, Sinox’s Hague service has been outstanding for over three months, with further delays likely due to the coronavirus and geopolitical issues. Relying on Document Operations LLC v. AOS Legal Techs., Inc., Judge Albright observed that alternative service can be warranted when time considerations render Hague service inappropriate. No. 4:20-CV-1532, 2020 U.S. Dist. LEXIS 211307, at *8 (S.D. Tex. Nov. 12, 2020). Noting that several months of delay associated with Hague service would permit the accused infringing products to continue to enter the market and delay the resolution of Sinox’s patent rights, Judge Albright determined that alternative service is appropriate.
“… motivated, at least in part, by the delay Hague service has presented (…) Hague service has been outstanding for over three months… ”
Three months is nothing in Hague time. Even the fastest of Central Authorities take two or three months.
“… observed that alternative service can be warranted when time considerations render Hague service inappropriate.”
NO. Just… NO. Time considerations can’t render Hague service inappropriate without conflicting violently with Schlunk. As Ted Folkman so succinctly puts it, this is simple and inexorable logic.