The case of the day is Sulzer Mixpac AG v. Medenstar Industries Co. (S.D.N.Y. 2015). Sulzer Mixpac, a Swiss corporation, sued Medenstar, a Chinese company, for trademark infringement, patent infringement, and related claims. It transmitted a request for service to the Chinese central authority in March 2015, but in November, the central authority informed Sulzer Mixpac that the request was still pending. Sulzer Mixpac then moved for leave to serve process by mail and by email under FRCP 4(f)(3).
I had such high hopes for the case. It started off exactly right. The Hague Service Convention, the judge held, applied. And when the Convention applies, he recognized, it is exclusive. That is, when the Convention applies, the plaintiff must use one of the methods authorized or permitted by the Convention. Thus the judge correctly concluded that service by mail was impermissible. FRCP 4(f)(3) forbids methods of service that are “prohibited by international agreement.” China has objected to service by postal channels under Article 10(a), and therefore service by mail is prohibited by the Convention and thus impermissible under FRCP 4(f)(3). Full marks, and so far so good.
But then the judge, citing Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011), and FTC v. PCCare247, Inc. 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013), “declined to extend countries’ objections to specific forms of service permitted by Article 10 of the Hague Convention, such as postal mail, to service by other alternative means, including email.” This occasioned much gnashing of teeth at Letters Blogatory headquarters. The problem with this reasoning, as I have argued before, is that leaving Article 10(a) to the side, no one can point to another provision of the Convention that authorizes or permits service by email. And since, as the judge recognized, the Convention is exclusive, it follows that service by email is impermissible if the Convention applies, at least in states like China that have objected to service by postal channels under Article 10(a).
It is difficult to bring this issue to the attention of an appellate court, but it would be highly useful to have an appellate decision on point, as well as some more explicit guidance from the Hague Conference. Unfortunately, the next meeting of the Special Commission is years off, so in the meanwhile we will have to muddle through.