Long-time readers will know that Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011), the 2011 decision on service of process by email, is my white whale. I have watched with dismay as a handful of new cases have cited Gurung in support of the erroneous position that service by e-mail is permissible in cases where the Hague Service Convention applies.
I’ve posted a paper on SSRN, modestly titled Gurung v. Malhotra is Wrongly Decided, to try to turn the tide. The basic argument is this:
- The Convention is exclusive. If it applies, you have to one of the methods of service it permits.
- The only method of service the Convention permits that even arguably extends to service by email is service by postal channels.
- If the state of destination has objected to service by postal channels, then service by email is impermissible in that state.
- Somewhat more speculatively, even if the state of destination has not objected to service by postal channels, service by email is still impermissible, because email is not within a fair reading of the term “postal channel.”
I welcome readers’ reaction to the paper and critiques of my position. Federal judges, and law clerks to federal judges: think about it! That’s all I ask.