The case of the day is Patrick’s Restaurant LLC v. Singh (D. Minn. 2018). Patrick’s sued Sujit Kumar Singh for breach of contract, on account of an alleged failure to make a promised capital contribution to the business in return for a membership interest. Singh resided in Mumbai. Singh was represented by US counsel and was on notice of the lawsuit, but he refused to waive service. Patrick’s sent a request for service to the Indian central authority, but seven months later, service had not been effected. Patrick’s moved for leave to serve by alternate means under FRCP 4(f)(3), namely, by email.
The judge authorized service by email. This was, of course, a mistake despite the many cases that make the same mistake. I won’t repeat the reasons here. The reason I mention the case is that there was an alternative the judge could have used that would not have violated the Hague Service Convention. He could simply have authorized service on the US lawyer. There are some doubts about whether this procedure works (because FRCP 4(f) applies only when service is to be made outside the United States, yet here the lawyer to be served is inside the United States), but they are weaker than the doubts about service by email, and in any case, an error here would only be an error of US law rather than a violation of a treaty. So my view is that when a judge is asked to authorize service by alternate means, and he or she is given a choice among imperfect options, the best course is to authorize a method that does not violate the Convention.
It’s also worth noting that many of the cases in this area are related to India. The difficulties US litigants face in serving process in India via the central authority in a timely way are putting a lot of pressure on US courts, which can lead to wrong decisions. India could do its part to relieve the pressure by improving the efficiency of its central authority.