Conflict Between the Federal Rules of Civil Procedure and the Hague Service Convention
English to Simplified Chinese legal translation services are required for international service of process in China under the Hague Service Convention. In February 2024, Plaintiff, NJOY, LLC (“NJOY”), filed suit in the United States District Court for the Southern District of California against iMiracle (HK), Ltd. (“iMiracle”) and other defendants. NJOY, LLC, v. iMiracle (HK) LTD., Case No. 24-cv-0397-BAS-JLB, 2024 WL 1546923 (U.S. Dist. Ct., S.D. Cal.) (Apr. 9, 2024) (hereinafter “NJOY, LLC”). NJOY is an American company that manufactures and distributes various electronic cigarettes and vaping products. iMiracle is a Chinese company that manufactures, markets, and distributes flavored vapor devices (“e-cigarettes”) in the United States, including California. In its lawsuit, NJOY claimed that iMiracle sold products in the United States that are not approved by the Food and Drug Administration and that are banned under the California Unfair Competition Law and the Prevent All Cigarette Trafficking Act. NJOY, LLC, at *1.
The United States and China are both signatories of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”). Thus, in commencing its claim, NJOY began the formal process of attempting to serve the defendants under the Hague Convention. However, because the process of serving all the defendants under the Hague Convention could take many months, NJOY also retained an English to Chinese translation service and emailed copies of the complaint to the Chinese Defendants’ email addresses. NJOY, LLC, at *3. Subsequent to this attempt to avoid the delay associated with proceeding under the formal requirements of the Hague Convention, NJOY sought a court order authorizing it to serve the Chinese defendants by either delivering the summons and complaint to the public communication email addresses listed on the Chinese defendants’ websites or by emailing the attorneys of the Chinese defendants who served as the attorneys of record in other court proceedings in the United States.
The Chinese defendants opposed NJOY’s motion to effect service abroad by email pursuant to Fed. R. Civ. P. 4(f)(3), claiming that service of process by email is prohibited under the formal service requirements of the Hague Service Convention. When iMiracle and the other Chinese defendants objected, the court was forced to confront the question of whether the Hague Convention’s formal rules for service of process either provide for or prohibit service of process by email. Even if the Hague Convention does not expressly provide for service of process by email, the question arises whether service of process via email is permitted as an alternative form of service under Fed. R. Civ. P. 4(f)(3).
Requirements for Service of Process under Federal Rule of Civil Procedure 4(f)
Rule 4 of the Federal Rules of Civil Procedure provides that when serving a corporation outside the United States, unless federal law provides otherwise or the defendant has filed a waiver, the foreign corporation “must be served . . . in any manner prescribed by Rule 4(f) for serving an individual,” except for personal service. Fed. R. Civ. P. 4(h)(2). Rule 4(f) provides for service upon a competent adult individual at a place not within the United States, by any one of three methods:
(1) by the Hague Convention or similar international agreement;
(2) if there is no international agreement that specifies other means of service, then (a) as prescribed by the law of the foreign country for service in that country; (b) as directed by the foreign authority; or (c) if not prohibited by the foreign country’s law, by using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
Fed. R. Civ. P. 4(f)(1)-(3).
Because the United States and China are both signatories of the Hague Convention, Fed. R. Civ. P. 4(f)(1) requires NJOY to follow the formal rules of the Hague Convention when serving iMiracle and the other Chinese defendants. However, Rule 4(f)(3) allows the court to authorize alternative methods of service, provided such methods are not prohibited by an agreement between the signatory countries. The question for the court in NJOY, LLC, was whether either the Hague Convention or Fed. R. Civ. P. 4(f)(3) allows for or prohibits the service of process via email.
The Formal Requirements for Service of Process under the Hague Convention
The Hague Service Convention formalizes a simplified process for serving documents abroad by specifying the approved methods of service to which signatories of the Convention agree to be bound. See Water Splash, Inc. v. Menon, 581 U.S. 271, 273, 137 S. Ct. 1504, 1507 (2017) (hereinafter “Water Splash, Inc.”). In the United States, under federal law, service under the Hague Convention is mandatory in all civil or commercial cases in which service must be effected abroad, even if state law allows for service by another means. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S. Ct. 2104, 2108 (1988) (citing Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 534, 107 S. Ct. 2542, 2550, n. 15 (1987)). Pursuant to the terms of the Hague Convention, service abroad is accomplished by the sender delivering process to the receiving country’s “Central Authority,” who then effects service in the member country. Hague Convention, Articles 3-6. Service effected through the Central Authority is known as “Hague service.” NJOY, LLC at *2. Alternatively, the court may issue an order allowing for service of process other than “Hague service,” provided the other method of service is not prohibited by international agreement. Fed. R. Civ. P. 4(f)(3).
Despite the clear directive that service of process under the Hague Convention is mandatory, the Hague Convention was drafted in the 1960s, when digital or electronic means were not available. Therefore, the Hague Convention does not specifically provide for, or even mention, service of process via electronic means, which includes email. Therefore, whether service of process may be effected via email depends on how narrowly courts interpret the language and scope of the Hague Convention.
Courts in the United States Disagree Whether the Hague Convention Allows for Service of Process Via Email
There is disagreement among district courts in the United States whether the Hague Convention prohibits email as an acceptable means of service. Media Trademark & Licensing Ltd. v. COINGEEKLTD.COM, No. CV-21-00214-PHX-DWL, 2021 WL 2895289, at *4 (D. Ariz. July 9, 2021) (hereinafter “Media Trademark”). Some courts hold that unless the Convention explicitly prohibits a particular method of service, any other method of service is permitted under Rule 4(f)(3). Other courts interpret the Hague Convention to provide for specific forms of service and that any method of service that is not specifically authorized by the Convention is prohibited.
Courts Holding that the Hague Convention Allows for Service of Process by Email
When interpreting the application of the Hague Convention, some courts hold that any method of service is allowed unless the Convention explicitly prohibits a particular method of service. See, e.g., Rubie’s Costume Co. v. Yiwu Hua Hao Toys Co., No. 2:18-cv-01530-RAJ, 2019 WL 6310564, at *2 (W.D. Wash. Nov. 25, 2019) (hereinafter “Rubie’s Costume Co.”). According to this interpretation, because the Hague Convention does not describe or include service via email as a prohibited method of service, courts are free to order service via email as an alternative means of service under Fed. R. Civ. P. 4(f)(3).
Multiple courts have allowed alternative service by electronic communication. For example, several courts have allowed service of process via email and through the defendants’ store pages on Facebook.com and Amazon.com. See Word Ape, LLC v. Pawico, No. 2:20-cv-01768-DWC, 2021 WL 768293 (W.D. Wash., Jan. 4, 2021) (hereinafter “Word Ape, LLC”); Rubie’s Costume Co., at *2; Juicero, Inc. v. Itaste Co., No. 17-cv-01921-BLF, 2017 WL 3996196 (N.D. Cal., June 5, 2017). Other courts have allowed service of process through a defendant’s online message system. See, e.g., Keck v. Alibaba.com, Inc., No. 17-cv-05672-BLF, 2018 WL 3632160, at **3−4 (N.D. Cal., July 31, 2018). Courts adopting this interpretation of the Hague Convention conclude that allowing service of process by email is consistent with due process and the objectives of the Hague Convention.
Courts Holding that the Hague Convention Prohibits Service of Process by Email
To the contrary, other courts in the United States have concluded that the Hague Convention expressly provides for the acceptable methods of service and that these methods are exclusive. This means that any other methods of service not included within the acceptable methods listed in the Convention are prohibited. See, e.g., Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 983 (N.D. Cal. 2020) (hereinafter “Facebook, Inc.”); Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip. Co., 494 F. Supp. 3d 404, 417 (N.D. Tex. 2020) (hereinafter “Prem Sales, LLC”). Courts that interpret the Hague Convention this way hold that “[u]sing a method of service that is not enumerated in the Convention would be tantamount to not ‘apply[ing]’ the Convention,” which is mandatory. Facebook, Inc., 480 F. Supp. 3d at 983. Even when a particular method may not be expressly prohibited, it may be inconsistent with the service methods authorized by the Convention and, therefore, may be prohibited. Prem Sales, LLC, 494 F. Supp. at 417.
Courts Disagree Whether the “Postal Channel” Provision of Article 10 of the Hague Convention Allows for Alternative Service of Process Via Email
Federal Rule of Civil Procedure 4 allows the court to order alternative means of service not prohibited by international agreement, which includes the Hague Convention. Fed. R. Civ. P. 4(f)(3). Article 10 of the Hague Convention provides that, as long as the receiving jurisdiction does not object to the particular method of service, the Hague Convention will not interfere with “the freedom to send judicial documents, by postal channels, directly to persons abroad.” As with Articles 3-6 of the Convention, courts interpret the term “postal channels” differently with respect to whether it includes email as a permissible means of service.
Courts Holding that Article 10 of the Hague Convention Permits Service of Process by Email
Some courts have recognized that email may be a means by which one could send judicial documents by postal channels under Article 10. See, e.g., Media Trademark, at *4. Even in Water Splash, Inc., the United States Supreme Court held that the term “postal channels” was not limited to registered mail. Water Splash, Inc., 581 U.S. at 273, 137 S. Ct. at 1507. The court’s holding was limited to cases governed by the Hague Convention in which the receiving state has not objected to service by mail pursuant to Article 10. Water Splash, Inc., 581 U.S. at 273, 137 S. Ct. at 1507. However, where the receiving country has objected to Article 10, alternative service via email is impermissible. For example, in Media Trademark, the Philippines objected to service pursuant to Article 10, so the court prohibited alternative service via email. Likewise, in Rio Properties, Inc. v. Rio International Interlink, the Ninth Circuit affirmed a district court’s order under Rule 4(f)(3) authorizing service of process via email. Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1014-19 (9th Cir. 2002) (hereinafter “Rio Properties, Inc.”). However, the foreign entity in Rio Properties was Costa Rica, which was not a signatory to the Hague Convention. The court noted that, otherwise, it would be prohibited from issuing a Rule 4(f)(3) order in contravention of the Hague Convention. Rio Properties, Inc., 284 F.3d at 1015, n.4. See also Gonzalez v. Human Rights Network, 2021 WL 86767, *15 (D. Ariz. 2021) (distinguishing Rio Properties, Inc.).
Several other courts have held that email service is permissible under Article 10 of the Hague Convention, even when the receiving jurisdiction objects to Article 10. For example, in Rubie’s Costume Co., in which the plaintiff attempted to serve one of the Chinese defendants through e-mail, the court held that, despite China’s objection to Article 10’s service of process by postal channel as an alternative to “Hague service,” service by electronic communication was permissible. Rubie’s Costume Co., at *2-3. See also Microsoft Corp. v. Goldah.com Network Tech. Co., Ltd., No. 17-CV-02896-LHK, 2017 WL 4536417, at *4 (N.D. Cal., Oct. 11, 2017) (holding service by e-mail did not violate Article 10); Microsoft Corp. v. Gameest Int’l Network Sales Co., No. 17-CV-02883-LHK, 2017 WL 4517103, at **2-3 (authorizing service by email despite China’s objection to Article 10); Williams-Sonoma, Inc. v. Friendfinder, Inc., No. C 06-06572 JSW, 2007 WL 1140639, at *2 (N.D. Cal., Apr. 17, 2017). Courts adopting this view draw a distinction between postal mail and email service and conclude that where a signatory nation has objected to the alternative means of service provided by Article 10, that objection is expressly limited to service by postal mail and does not extend to other forms of service, such as e-mail or website posting. Chanel, Inc. v. Individuals, Partnerships and Unincorporated Associations Identified on Schedule “A”, 2020 WL 8226841, at *2 (S.D. Fla. 2020); cf. Agha v. Jacobs, No. C-07-1800-RS, 2008 WL 2051061, at *2 (N.D. Cal. May 13, 2008) (email service prohibited because Germany objected to service by mail under Article 10 and service by email is not distinguishable from service by mail). As a result, these courts find that service of process by email as an alternative form of service is not expressly prohibited by Article 10 of the Hague Convention.
Courts Holding that Article 10 of the Hague Convention Prohibits Service of Process by Email
Consistent with the view that signatories of the Hague Convention are bound to its narrow application, the court in Prem Sales, LLC, held that the Hague Convention “pre-empts inconsistent methods of service … wherever it applies.” Prem Sales, Inc., 494 F. Supp. at 409. After evaluating all of the applicable cases and various interpretations of the Hague Convention by various courts, the court in Prem Sales, LLC, firmly held that it is contrary to the purposes of the Hague Convention to hold that a country must object to all forms of service that are not otherwise expressly prohibited in the language of the Convention, and that interpreting Article 10 of the Convention to allow for email service over the objection of the receiving country undermines the purpose of the Convention.
The Court in NJOY, LLC, v. iMiracle (HK) LTD. Concludes that Service of Process Via Email as an Alternative to the Hague Convention Is “Premature”
Like the court in Prem Sales, LLC, the court in NJOY, LLC, considered the reasoning of the various courts and concluded that the Hague Convention enables only certain methods of service while prohibiting all others. NJOY, LLC, at *2. Specifically, the court reasoned that the Convention must apply in all cases and that methods of service outside the Convention are expressly prohibited. NJOY, LLC, at *2. See also Lonati, S.P.A. v. Soxnet, Inc., No. CV 20-5539-GW-JPRX, 2021 WL 9839477, at *3 (C.D. Cal. Sept. 9, 2021). The court further reasoned that even if Article 10 were interpreted to allow for service by email, it is irrelevant when the receiving country objects to service of process by mail.
Because China is a signatory of the Hague Convention and objects to service pursuant to Article 10, service to the Chinese defendants is proscribed by the Hague Convention. NJOY, LLC, at *2. Based on this reasoning, the court held that NJOY must first pursue “Hague service” to the fullest extent possible. NJOY, LLC, at *3. Although NJOY retained an English to Chinese translation service and emailed copies of the complaint to the Chinese Defendants’ email addresses, it did not first attempt (and fail) to effect Hague service. Therefore, the court held that “although Hague service may take additional time and be cumbersome, it is mandatory,” and resorting to alternative means of service under Fed. R. Civ. P 4(f)(3) is premature. NJOY, LLC, at *2.
Note, however, that the court’s holding does not resolve all conflict among domestic courts. The court held that an attempt at Hague service through the Central Authority pursuant to Fed. R. Civ. P. 4(f)(1) is required before the court may opt for alternative service under Fed. R. Civ. P. 4(f)(3). However, in Rio Properties, Inc., the court held that Fed. R. Civ. P. 4 does not “create a hierarchy of preferred methods of service of process” and does not require that a party first attempt to obtain process by the Hague Convention before petitioning the court for alternative relief. Rio Properties, Inc., 284 F.3d at 1014-15. Accordingly, the only resource to reconcile the conflict among the courts may be the discretion of each court considering the specific facts of each case.
The Relevance of Legal Translation Services to a Court’s Decision to Allow for Alternative Service of Process Via Email
In exercising discretion whether to allow for service of process by email or any other method outside the requirements of the Hague Convention, courts consider a variety of factors when evaluating whether to grant relief under Rule 4(f)(3). Such factors include:
• whether the plaintiff identified a physical address for the defendant;
• whether the defendant was evading service of process; and
• whether the plaintiff had previously been in contact with the defendant.
Word Ape, LLC, at **2-3. Another relevant factor, however, is the need for legal document translation services when serving process abroad.
In Prem Sales, LLC, the plaintiff attempted to serve the Chinese defendant via email. Prem Sales, LLC, 494 F. Supp. 3d at 410. In assessing the propriety of alternative service, the court found the requirement for English to Simplified Chinese translation services to be a significant factor for denying such relief. Prem Sales, LLC, 494 F. Supp. 3d at 404. The court reasoned that Article 5 of the Hague Convention authorizes the Chinese Central Authority to “require . . . document[s] to be written in, or translated into, the official language or one of the official languages of the State addressed.” Prem Sales, LLC, 494 F. Supp. 3d at 418. In support of its argument for alternative service via email, the plaintiff, Prem Sales, LLC, argued that the defendant would not be prejudiced by receiving service via email and not receiving the documents in Chinese, especially since the defendant had ample opportunity to have the English documents translated if it chose to do so. However, the court held that even though allowing email service may not hinder or restrict the time available to translate the English documents into Simplified Chinese, that did not negate the fact that the plaintiff must comply with the Convention’s requirements for the translation of documents and the required service of process. For this reason, where legal translation services are required, service of process via email “again falls short of satisfying the dictates of the Hague Convention.”
Contact All Language Alliance, Inc. to obtain legal translation services for service of process in China; Hungary; Japan; Argentina; Romania; South Korea; Poland, and other countries that are signatories of the Hague Service Convention and do not object to this method of service.
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