U.S. Court Rejects Request for Email Service under Hague Service Convention
May a United States court authorize service of process by email when the defendant is located in a country that is a party to the Hague Service Convention (the “HSC”)? In a matter of first impression in the Eleventh Circuit[1] a Judge for the District Court for the Middle District of Florida[2] recently decided that email service is not generally permitted under the HSC, siding with the minority view and with a recent decision from the District Court for the Southern District of New York.[3] Under the HSC, contracting states designate a central authority which will undertake to receive requests for service coming from other contracting states. The HSC specifies certain alternative service methods (e.g., when the law of the domestic state allows a form of service or if allowed by an agreement between contracting states). The court in Duong reasoned that absent email service fitting within one of the categories of alternative service methods, email service is not permitted by the HSC.
Federal courts occasionally permit service by email and even social media pursuant to various federal rules governing service of process. This was recently highlighted in a decision by a New York Bankruptcy Judge who permitted service of a subpoena via Twitter (now known as X) and email on a U.S. national located in a foreign country in connection with the cross-border insolvency cases of Three Arrows Capital, Ltd., the now-collapsed cryptocurrency investment firm.[4] However, the court in Duong found that the rule permitting alternative service methods outside the U.S.[5] is generally unavailable when the HSC applies. The court found that a party may request alternative service pursuant to this rule only in accordance with HSC’s “safety valve” provision governing default judgments, provided certain conditions are met.
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[1] The Eleventh Circuit comprises federal courts located in the states of Florida, Georgia, and Alabama.
[2] Duong v. DDG BIM Servs. LLC, 2023 WL 7209982, __ F. Supp. 3d __ (M.D. Fla. Nov. 2, 2023).
[3] Smart Study Co. v. Acuteye-Us, 620 F. Supp. 3d 1382, 1394 (S.D.N.Y. 2022).
[4] In re Three Arrows Cap., Ltd., 647 B.R. 440 (Bankr. S.D.N.Y. 2022). The HSC did not apply in this case.
[5] See Federal Rule of Civil Procedure 4(f).
