Case of the Day: Topstone Communications v. Chenyi Xu

The case of the day is Topstone Communications, Inc. v. Chenyi Xu (S.D. Tex. 2022). I love this case. It shows that the tide is turning. As longtime readers know, ever since Gurung v. Malhotra, courts have approved service by email on defendants in cases within the scope of the HCCH Service Convention, even when the state of destination has objected to service by postal channels under Article 10(a). The cases generally reason that the objection refers to postal channels or to service by alternate means but does not expressly refer to service by email. Therefore, the objection should not be read to encompass service by email.

This reasoning is not just wrong but flagrantly wrong. The Convention is exclusive. Only the methods of service that it authorizes or at least permits are proper. Article 10(a) permits service by postal channels. So if a state objects to service by postal channels, then Article 10(a) can’t apply. The question, then, is whether the court or the plaintiff can point to any other provision in the Convention that authorizes or at least permits service by email. The answer is no. If you leave aside Article 10(a), there is no other provision of the Convention that could plausibly authorize or permit service by email.

Starting in 2019, courts began to take a fresh look. In cases such as NOCO Co. v. Chang and Luxottica Group v. Partnerships and Unincorporated Associations, courts recognized that because the Convention is exclusive, an objection to service under Article 10(a) necessarily means that service by email is improper. Today’s case is the latest in this line of cases. I could be wrong, but I like to think that Letters Blogatory has played a role in turning the tide. So I hope you will continue to retweet and share my posts on this issue, in the hope that district court law clerks will read and be persuaded by the (dare I say) sound and unimpeachable logic behind the correct position.

In today’s case, the defendants were in China, and China, as we know, has objected to service by postal channels. Here is the key language from the decision, which puts it, I think, maybe better than any district court has done to date:

Even if China’s Article 10(a) objection does not in and of itself prohibit email service, the Court holds that such service is nevertheless proscribed by the Convention because it is inconsistent with the Convention’s authorized service methods.

This is exactly right. Pointing out that China’s objection does not explicitly mention email doesn’t get you anywhere, because the next question is: “if we’re not talking about Article 10(a), what provision of the Convention are we talking about?” There has to be one, because the Convention is exclusive. And since there is none, the service is improper.

So much for the main course. For dessert, the court pointed out that the plaintiff’s attempt to serve the Chinese defendants by service on the Texas Secretary of State was also improper under the Convention, because the service is incomplete until the documents are transmitted by the Secretary to the defendants, and that transmission itself is subject to the Convention’s requirements. On that point, readers should refer to Bill Dodge’s excellent new post on substituted service at the Transnational Litigation Blog.

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