The case of the day is Shull v. University of Queensland (D. Nev. 2018). Frederick H. Shull Jr. sued the University of Queensland School of Medicine. He sought leave to serve process by mail.
The United States and Australia are both parties to the Hague Service Convention. Australia does not object to service by postal channels, though it does require such service to be sent by registered mail. So the answer to the motion should have been to deny it on the grounds that no leave is required: Shull was free to serve process by mail as long as he followed the formalities required by FRCP 4(f)(2)(C)(ii).
The judge, though, made a basic mistake. She read Volkswagen, which describes the Convention as “mandatory,” to mean that the parties must make use of it when it applies. That’s not a stupid mistake, since it takes the word “mandatory” in its everyday meaning, but it’s wrong nonetheless. This isn’t the same confusion between “mandatory” and “exclusive” that I’ve commented on several times. Here, the problem is the failure to see that the central authority in Article 5 of the Convention is only one of the methods of service the Convention permits. Article 10 of the Convention permits the use of several alternate channels of service as long as the state of destination as not objected, including service by postal channels. As Australia has not objected, service by mail in Australia is perfectly proper under the Convention. The judge’s decision is erroneous and should not be followed.