The case of the day is Vega v. Hästens Beds, Inc. (S.D.N.Y. 2022). Vega brought employment discrimination claims against Hästens Ltd. and others. He had trouble serving Hästens at its address in Malta via the central authority mechanism of the Service Convention, and so he moved for leave to serve process on Hästens’ US lawyer. The judge granted the motion.
The case raises one of the classic Letters Blogatory issues. The Convention is exclusive, which means that when it applies, a plaintiff must use one of the methods it authorizes, or at least permits. But the Convention does not apply when service is effected in the United States, because the Convention’s scope is limited to cases where there is occasion to transmit a judicial document abroad for service (Convention art. 1). This leads US plaintiffs, frustrated with the Convention’s requirements, to seek, and often to receive, permission to serve process by alternate means on someone within the United States, typically the foreign defendant’s lawyer. On the other hand, FRCP 4(f)(3), the rule that allows federal courts to authorize alternate methods of service, is part of Rule 4(f), and Rule 4(f) applies only to service “at a place not within any judicial district of the United States.” So the plaintiff and the judge are like the observers in an experiment in quantum mechanics. The service takes place in the United States, so as to ensure that the Convention does not apply, but it takes place outside of the United States, so as to ensure that the court has the power to authorize an alternate method of service. Just don’t look too closely, or the wave function collapses!
Most often, courts asked to do this don’t even think about the language in FRCP 4(f) limiting the scope of the rule to service outside the United States. But when they do think about it, as in today’s case, they have an unhappy decision to make.
- There are many, many cases authorizing service on a foreign defendant by serving the US lawyer. Does the judge say that all of those many, many cases are wrongly decided?
- Perhaps the service is good because once the papers reach the lawyer, the lawyer has to transmit them on the foreign defendant. This is the approach the judge took in today’s case. But it can’t be right. First, the idea that the summons can’t be effective until it reaches the foreign defendant is at odds with Volkswagen AG v. Schlunk, the Supreme Court’s leading case on the Convention, which allows service on a US subsidiary notwithstanding the Convention, when state law makes such service effective. Volkswagen was not a Rule 4(f) case, but if there were some requirement of due process that made the service ineffective until the subsidiary had delivered the summons to the foreign parent, then I think it would have had to come out the other way. Second, while the Convention does not apply in cases of true fictional service, for example, notification au parquet or service by publication, it does apply in cases where the plaintiff serves a government official such as the Secretary of State and the secretary then has to send the documents to the defendant abroad in order for the service to be valid. Today’s case is just like that case, and if it is necessary to send the document abroad in order to make the service valid, then the Convention and its rule of exclusivity should apply.
- Perhaps there is some kind of “spooky action at a distance” that allows a court to say that the document does not need to be transmitted abroad for service, but that the service is effected abroad? Perhaps the delivery of the document here effects service there? This seems the most promising practical approach, but I haven’t seen any court do it convincingly so far.