The case of the day is d.light design, Inc. v. Boxin Solar Co. (N.D. Cal. 2015). The plaintiffs, d.light, Inc. and d.light Design, Inc., sued nine Chinese companies for patent infringement, trade dress infringement, false advertising, and unfair competition. The address of two of the defendants, Skone Lighting Co., Ltd. and Sailing Motor Co., Ltd., were unknown to d.light. So d.light served process on them via email and moved for an order deeming service effectuated.
I’ve given my view on this before, though I can’t find a link now (note to self: must work on allowing complex queries!) It seems to me that FRCP 4(f)(3) requires a plaintiff to seek leave of court before making service by alternate means. Courts seem to get this wrong fairly frequently, as the court did here. But leaving that point aside, the court correctly held that the Hague Service Convention is no bar in the circumstances to service by email. Under Article 1, the Convention does not apply where the defendant’s address is unknown. So the court recognized that it was unnecessary to decide whether service by email would have been acceptable had the Convention applied. (As long-time readers know, the answer to that question is “no,” because China has objected to service by postal channels under Article 10(a), and that’s the only provision of the Convention that even arguably permits service by email).
This is another on the long list of cases that correctly hold that service by email is permissible in China when the Convention does not apply. It’s important not to read them to mean that service by email is permissible in China when the Convention does apply.