Missouri v. China: a Letters Blogatory (Informal) Amicus

Iwrote almost a year ago about Missouri v. China, which I called the “unmeritorious case of the day.” This is the case brought by the state of Missouri against the Chinese government, the Chinese Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences, alleging that the COVID-19 pandemic is “the direct result of a sinister campaign of malfeasance and deception carried out by the Defendants.” When we think, a year later, about the reasons the pandemic has been so bad in the United States, “blame China” seems quaint. Anyway, as I observed in the prior post, leaving aside everything else wrong with the case, it was going to be a challenge to serve process on the defendants, and that’s how it turned out. After China predictably refused to execute a letter of request under the Service Convention on Article 13 grounds, Missouri has recognized that it is going to need to serve process on the governmental defendants via diplomatic channels as prescribed in such cases under 28 U.S.C. § 1608. And after first saying that it would seek to serve all defendants under the FSIA, Missouri now seeks leave under FRCP 4(f)(3) to serve process on the Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences by email.

Because motions like this are almost always heard ex parte, without giving the court the benefit of the arguments against alternate service, I’ve prepared this post as a kind of informal amicus brief, which perhaps some enterprising clerk in St. Louis will find. I suppose I could seek submit an amicus brief directly, but that seems uncool to me and would, I think, put me in bad company when you consider the lawyers who seek to inject themselves into politically salient cases. Anyway, here for what it is worth is the argument that shows that Missouri’s motion must be denied.

Service by Email in China is Impermissible, When a Defendant’s Address is Known

The plaintiff seeks leave to serve three of the Chinese defendants, the Communist Party of China, the Wuhan Institute of Virology, and the Chinese Academy of Sciences, by email. There is no suggestion that their addresses are unknown.
The plaintiff acknowledges that service in this case is subject to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, 658 U.N.T.S. 163 (“the Convention”). The Convention applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad,” except if “the address of the person to be served with the document is not known.” Convention, art. 1.

The Convention is mandatory. That is, it “preempts inconsistent methods of service … in all cases to which it applies.” Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988). The Supreme Court’s holding that the Convention preempts inconsistent methods of service is “undisputed” internationally. Permanent Bureau of the Hague Conference on Private International Law, Practical Handbook on the Operation of the Service Convention ¶ 50 (4th ed. 2016). The Convention therefore prohibits methods of service that it does not authorize or at least permit. Rule 4(f)(3) allows this Court to authorize methods of service, even if they violate the foreign state’s domestic law, but not if they violate the Convention. See Fed. R. Civ. P. 4(f)(3) (court may authorize service “by other means not prohibited by international agreement”).

The Convention’s main channel for transmission of documents abroad is the central authority mechanism, which the plaintiff has tried unsuccessfully in this case. The Convention also permits alternative methods of service, including service by sending “judicial documents, by postal channels, directly to persons abroad.” Convention, art. 10(a). But it provides that states opposed to these alternative methods of service can object. See Convention, art. 10; see also Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508 (2017). China has objected to all alternate methods of service under Article 10, as the plaintiff has recognized. See Declarations of the People’s Rep. of China.

No provision of the Convention, on its face, authorizes or permits service by email. If email is a permissible method of service at all under the Convention, it is permissible because email can be analogized to postal mail, and service by postal channels is permitted under Article 10(a). But as just noted, China has objected to service by the methods in Article 10. Its objection covers the entirety of what Article 10 permits. The declaration reads: “to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.” See Declarations, supra. The plaintiff cannot point to any other provision in the Convention that even arguably would authorize or permit service of process by email. Since the Convention is mandatory, any methods of service that it does not authorize or permit are forbidden. And since Rule 4(f)(3) does not allow the Court to authorize methods that violate the Convention, the Court cannot authorize service of process by email here.

Gurung v. Malhotra is Wrongly Decided

Gurung v. Malhotra is Wrongly DecidedThere are apparently no published federal appellate decisions on this point. Several district court decisions have erroneously authorized service of email under Rule 4(f)(3) in countries that, like China, have objected to service under Article 10. The reasoning in these cases is usually that the foreign state’s objection does not mention email, and thus that it has not objected to service by email. See, e.g., Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011). Many though not all of these decisions were “issued at the early stage of litigation,” and there is “no indication that plaintiffs’ counsel brought to the court’s attention the contrary legal authority.” Luxottica Group S.p.A. v. P’ships & Uninc. Ass’n Identified on Schedule “A,” 391 F. Supp. 3d 816, 827 (N.D. Ill. 2019). Recently, courts have begun to recognize the fallacy in this reasoning. See, e..g., Luxottica, 391 F. Supp. 3d at 824-827 (service by email in China inconsistent with Convention because China has objected to service under Article 10); Facebook, Inc. v. 9 Xiu Network Shenzhen Tech. Co., 2020 U.S. Dist. LEXIS 137701, at *9-19 (N.D. Cal. Jul. 28, 2020) (same). It is not enough to say that China has not objected to service by email with specificity. Courts must ask whether there is any provision of the Convention that authorizes or permits service by email. Skipping that step turns the Convention on its head. As the Supreme Court has held, methods of service not expressly permitted by the Convention are forbidden. Gurung and similar cases are wrong because they suggest that methods of service not expressly objected to by the foreign state are permitted.

There is no question that the Chinese government, justifiably or unjustifiably, has stymied service of process by refusing, as it has the right to do under Article 13 of the Convention. The Convention recognizes that difficulties may arise in the transmission of judicial documents for service, as they have in this case. But it specifies that such difficulties are to be resolved not by use of methods contrary to the Convention, but by diplomatic channels. See Convention art. 14. The Convention’s solution is diplomatic negotiations between the governments of the United States and China. There is no indication in the record that the plaintiff has sought diplomatic assistance from the State Department.

Service by Alternate Means Under Rule 4(f)(3) May Be Unavailable, As the Plaintiff Has Already Asserted That All Defendants Must Be Served Under the FSIA

The plaintiff had previously taken the position that all defendants were required to be served under the service provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608. The plaintiff took the position that the “Notice of Process Server” form required by Local Rule 2.02(B) was not applicable in this case because it intended to serve the defendants under the FSIA. (ECF 2). Letters Blogatory lacks any expertise that bears on the question of whether the Chinese Communist Party, the Wuhan Institute of Virology, or the Chinese Academy of Sciences should be treated as part of the Chinese state or agencies or instrumentalities of the state for these purposes. If these defendants are state entities for FSIA purposes as the plaintiff has suggested, however, it is clear that the Court lacks the power to authorize service by alternate means, because 28 U.S.C. § 1608 specifies the only methods of service that are permissible in an FSIA case. See Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp. 398, 401 (E.D. Va. 1984).

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