The case of the day is NOCO Co. v. Chang (N.D. Ohio 2019). NOCO brought a claim against Liu Chang, who resided in China, alleging Chang sold knockoff products via Amazon. NOCO send a request for waiver of service of process to Chang’s address China but received no response, though someone signed for the letter. The address was the same address Chang had used to register US trademarks. NOCO then sought leave to serve process on Chang by alternate means, namely, by using Amazon’s messaging platform. The judge denied the motion. I love this case.
We have seen a lot of cases over the years here at Letters Blogatory where the foreign defendant’s address is known, and the Hague Service Convention therefore applies, and yet the court approves service by electronic means—even in cases like this one, where the defendant is in a country that has objected to service by postal channels and thus there is no argument that the service is permissible by analogy to service by mail. The reasoning is usually very poor: “the foreign country has objected to service by mail, but it has not expressly objected to service by email, therefore service by email is okay.” This reasoning makes the basic rule “everything not forbidden is permitted,” when in reality the rule of the Convention is “everything not authorized is forbidden.”
Other courts get the outcome right but on other grounds. Sometimes courts deny leave to serve by electronic means but say that they are deciding the matter as a matter of discretion. Yes, FRCP 4(f)(3) is discretionary, but courts have no discretion to authorize a method of service that the Convention forbids. This is because Rule 4(f)(3) allows methods that are contrary to the local law of the state of service but not that are contrary to treaties to which the United States is party.
Today’s case is the rare case that gets the issue right, for the right reason. The method of service was impermissible under the Convention. The judge correctly held that the Convention applied and was “mandatory” (in the sense the Supreme Court uses the word, rather than the sense the Hague Conference uses the word, which I suppose is fair enough). Since there was no way to serve the process without transmitting the documents abroad,[efn_note]The judge did not engage with questions about locality and cloud computing like the ones discussed at the Law’s Porosities conference in 2017.[/efn_note] and since the only method available under the Convention for use in mainland China is the central authority mechanism, service by other methods is impermissible. Hooray, Judge James Gwin! The only point that was slightly off-key was the judge’s remark that “Rule 4(f)(1) requires that, when available, the service method appropriate under an applicable treaty be used if the treaty so requires.” In my view this is not exactly right. FRCP 4(f)(1) authorizes but does not require the use of the Convention’s central authority mechanism to service process. The procedural reason why you have to use that mechanism in a case like this is not found in FRCP 4(f)(1), but rather in FRCP 4(f)(3), which allows only means of service “not prohibited by international agreement.”
But nonetheless, the opinion is outstanding and is a good corrective to Gurung v. Malhotra and its progeny.