The case of the day is Love-Less Ash Co. v. Asia Pacific Construction, LLC (D. Utah 2021). Love-Less brought a claim against Ka Yee Wong and others. The opinion doesn’t discuss the substance of the claim. Love-Less sought leave to serve the defendant by email. He was believed to be in mainland China or in Hong Kong, but Love-Less had no physical address for him. Its counsel had reached him by phone and had confirmed his email address, but he refused to provide a physical address.
On these facts, the court held that a motion under FRCP 4(f)(3) to serve process by email should be allowed. It reasoned that the weight of authority under the Hague Service Convention allowed for service by email in China notwithstanding China’s Article 10 declaration objecting to service by postal channels.
The court’s decision was correct, or at least within its discretion, but the reasoning was wrong. Since the defendant did not have a known physical address, under Article 1, the Convention simply doesn’t apply, and there was no need to decide the effect of China’s Article 10 objection. And of course, the court got the Article 10 point wrong in the usual way, pointing to the many cases that have wrongly held that an Article 10 objection does not bar service by email. The customary Letters Blogatory challenge: if you are not invoking Article 10(a) when you serve process by email in a case where the Convention applies, what provision of the Convention are you invoking? None. That’s the problem.