Why Courts Require Hague Convention Service First: Lessons from Ultra International v. Sony Involving Defendants in Germany, Italy, France, Sweden, Switzerland, the UK, Australia
In Ultrass International Music v. Sony, the court reaffirmed that plaintiffs must first attempt service under the Hague Service Convention before seeking alternative methods under Rule 4(f)(3), emphasizing that efficiency, cost concerns, or uncooperative opposing counsel do not justify bypassing established international service protocols.
Legal translation services are required for international service of process on foreign defendants. The recent decision in Ultra International Music Publishing, LLC v. Sony Music Entertainment serves as a stark reminder that federal courts will not lightly circumvent established international service protocols, even when alternative methods appear more efficient or cost-effective. The Southern District of New York’s denial of plaintiffs’ motion for alternative service under Rule 4(f)(3) on defendants in Germany, Italy, France, Sweden, Switzerland, the UK, and Australia reinforces a critical principle: when the Hague Service Convention applies, courts expect plaintiffs to attempt conventional service first before seeking judicial intervention. This requirement becomes even more complex when considering the growing circuit split over whether email service of process violates the Hague Service Convention‘s requirements.
The Threshold Requirements for Alternative Service
Judge Gary Stein’s opinion in Ultra International crystalizes the two-pronged test that district courts in the Second Circuit consistently apply before authorizing alternative service under Rule 4(f)(3):
1. Reasonable Attempt: The plaintiff must show it has reasonably attempted to effectuate service through other means; and
2. Necessity: The plaintiff must demonstrate that circumstances require the court’s intervention.
These requirements, while not explicitly codified in Rule 4(f)(3), reflect the judiciary’s respect for principles of international comity and the preference for following established diplomatic channels for cross-border legal process. As the court noted in Ultra International, these threshold requirements “require the moving party first to follow—or attempt to follow—international agreements and law in recognition of principles of comity and not to whimsically seek an alternate means of service.”
The Hague Convention Default Rule and Its Complexities
The court’s analysis makes clear that when foreign defendants are located in Hague Service Convention signatory countries—which includes most developed nations—there is a strong presumption in favor of attempting service through those established mechanisms first. This presumption exists for sound policy reasons: the Hague Service Convention represents a carefully negotiated international framework designed to balance the service needs of cross-border litigation with respect for foreign sovereignty.
However, the practical application of this rule has become increasingly complex as courts grapple with modern communication methods not contemplated when the Service Convention was drafted in the 1960s. The question of whether email service violates the Hague Convention has created a significant circuit split, with courts reaching opposite conclusions based on their interpretation of the Convention’s scope and requirements.
What Doesn’t Justify Alternative Service: Hard Lessons from Ultra International
The Ultra International decision provides invaluable guidance on arguments that consistently fail to persuade courts to authorize alternative service:
Time and Cost Concerns Alone Are Insufficient
Plaintiffs argued that Hague Service Convention service would be “wasteful, expensive, and time-consuming.” The court firmly rejected this rationale, noting that such concerns “could be said, to a greater or lesser degree, about service on any foreign defendant.” The estimated costs of approximately $12,000 for serving fourteen defendants across multiple countries were deemed “minimal in the context of this high-stakes commercial litigation.”
This reasoning aligns with decisions in other circuits. In Asia Maritime Pacific Chartering Ltd. v. Comercializadora Columbia S.D. de C.V., the Southern District of New York similarly held that a petitioner’s “desire to move quickly” was not sufficient basis to circumvent procedural rules. Courts consistently emphasize that convenience and efficiency cannot override established international protocols.
Asking Opposing Counsel to Accept Service Is Not an “Attempt”
Perhaps most importantly for practitioners, the court rejected plaintiffs’ argument that requesting opposing counsel to accept service on behalf of foreign defendants constitutes a reasonable attempt at service. The court found this argument “meritless,” emphasizing that defendants have no obligation to waive service and that accepting such logic would make “motions for alternative service de rigueur in cases with foreign defendants.”
This holding has significant practical implications. Many practitioners routinely request that opposing counsel accept service as a professional courtesy, but Ultra International makes clear that such requests cannot substitute for genuine attempts at conventional service when seeking court authorization for alternative methods.
Allegations of Wrongdoing Don’t Create Blanket Exceptions
Plaintiffs attempted to argue that defendants accused of counterfeiting and fraud should be subject to different service standards. The court clarified that such exceptions apply only when defendants “lack a genuine or identifiable physical address”—not simply because they are accused of wrongdoing. This distinction becomes particularly important when considered alongside successful alternative service cases involving Argentine defendants.
When Courts Allow Alternative Service: Lessons from Argentine Cases
In a previous post, we discussed recent cases involving service of process in Argentina demonstrate circumstances where courts have been more receptive to alternative service methods, particularly email. These cases provide important context for understanding when the stringent requirements of Ultra International might be relaxed.
In Artnet Worldwide Corp. v. Gabriel Gruber, the Southern District of New York allowed a default judgment to proceed despite uncertainty about whether conventional Hague service had been completed. The court found that more than eighteen months had elapsed since documents were delivered to the Argentine Central Authority, and despite reasonable efforts, no certificate of service had been received. Crucially, the defendant’s attorney had contacted plaintiff’s counsel, indicating awareness of the proceedings.
Similarly, in Automobili Lamborghini S.p.A. v. Garcia, the Eastern District of Virginia authorized email service after traditional Hague service failed repeatedly. Argentine authorities found the defendant’s last known address vacant and under construction, and the defendant had been communicating with the plaintiff via email during the service attempts. The court emphasized that Argentina‘s objection to postal service under Article 10 of the Hague Convention does not extend to email service.
Goddess Approved Productions, LLC v. Wolox and Sirvart SA provides another example where practical considerations during the COVID-19 pandemic justified alternative service. The Delaware District Court noted that service companies estimated Hague service could take 6-24 months during the pandemic, and importantly, that the majority of district courts have concluded that Argentina’s objection to postal mail service does not prohibit email service.
These cases illustrate a crucial distinction: courts are more willing to authorize alternative service when conventional methods have been attempted and failed, or when extraordinary circumstances (like a global pandemic) create genuine impediments to traditional service.
The Growing Circuit Split on Email Service
The tension between efficiency and protocol becomes particularly acute when considering email service under the Hague Service Convention. As we discussed in another prior post, courts are deeply divided on whether email service violates the Convention’s requirements, creating a complex landscape for practitioners.
Courts Allowing Email Service
Several courts have concluded that email service is permissible because the Hague Service Convention does not explicitly prohibit it. In Rubie’s Costume Co. v. Yiwu Hua Hao Toys Co., the Western District of Washington held that any method of service is allowed unless the Convention explicitly prohibits it. Multiple courts have authorized service via email, Facebook, and other electronic means, reasoning that these methods are consistent with due process and the Convention’s objectives.
The key distinction these courts make is between postal mail and email service. They argue that when signatory nations object to Article 10’s “postal channels” provision, that objection is limited to traditional mail and does not extend to electronic communications.
Courts Prohibiting Email Service
Conversely, other courts have concluded that the Hague Convention provides exclusive methods of service, and any deviation is prohibited. In Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., the Northern District of California held 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.
The recent decision in NJOY, LLC v. iMiracle (HK) LTD. exemplifies this restrictive approach. The Southern District of California concluded that the Hague Convention enables only certain methods of service while prohibiting all others, and that resorting to alternative means under Rule 4(f)(3) is “premature” without first attempting conventional Hague service.
Legal Document Translation Services: An Often-Overlooked Consideration
An important practical consideration that courts weigh when evaluating alternative service requests is the need for legal document translation. In Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip. Co., the Northern District of Texas found the requirement for English to Simplified Chinese translation services to be a significant factor in denying alternative service via email.
The court reasoned that Article 5 of the Hague Service Convention authorizes foreign Central Authorities to require legal documents to be translated into the official language of the receiving state. This requirement cannot be circumvented simply by using email service, and courts are reluctant to authorize alternative service methods that effectively bypass the Convention’s legal document translation requirements.
Practical Implications for Practitioners
The Ultra International decision, viewed alongside the growing body of case law on international service, offers several practical lessons for attorneys handling international litigation:
Plan for Hague Convention Service from the Outset
Do not treat alternative service as a first resort. When drafting complaints naming foreign defendants in Hague Convention countries, budget for the time and expense of conventional service. The Ultra International court noted that plaintiffs’ delay in even inquiring about Hague Convention service timelines undermined their urgency arguments.
Document Service Attempts Thoroughly
If conventional service fails, carefully document the specific impediments encountered. Successful alternative service cases like Lamborghini and Artnet involved detailed records of service attempts, communications with foreign authorities, and evidence of defendants’ evasive behavior.
Understand Country-Specific Objections
Research whether the target country has objected to specific service methods under the Hague Service Convention. Argentina’s objection to postal service has created opportunities for email service in some circuits, while other countries’ objections may preclude certain alternative methods entirely.
Consider Legal Translation Requirements Early
Factor in legal document translation costs and requirements from the beginning. Courts are less sympathetic to alternative service requests that appear designed to circumvent legitimate legal document translation requirements.
Gather Proper Evidence for Delay Claims
If seeking alternative service based on anticipated delay, obtain detailed, sworn affidavits from qualified international process servers. The Ultra International court gave little weight to informal, unsworn estimates of service times.
The Broader Policy Framework and Future Implications
The Ultra International decision reflects courts’ commitment to maintaining respect for international legal processes even in an era of increasingly global litigation. However, the growing circuit split on email service suggests that this area of law may require clarification from higher courts or legislative intervention.
The COVID-19 pandemic has accelerated discussions about modernizing international service of process methods, as traditional diplomatic channels faced unprecedented delays. Some practitioners argue that rigid adherence to 1960s-era protocols ill-serves modern commercial litigation needs, while others contend that respect for international agreements requires strict compliance regardless of practical inconvenience.
Alternative Service Under Rule 4(f)(3): Narrow Exception, Not Strategic Shortcut
Ultra International Music v. Sony reinforces that federal courts view Rule 4(f)(3) alternative service as an exception, not a convenient substitute for established international service protocols. When the Hague Service Convention applies, practitioners should assume they will need to attempt service through those channels first, regardless of their assessment of more efficient alternatives.
However, the emerging case law also suggests that courts may be more receptive to alternative service in specific circumstances: when conventional service has been attempted and failed; when defendants are evading service; when extraordinary circumstances create genuine impediments to traditional service; or when defendants have demonstrated awareness of the proceedings through other means.
The circuit split on email service adds another layer of complexity, requiring practitioners to carefully research local precedent and consider forum shopping implications when possible. As international litigation continues to grow and technology evolves, this area of law will likely continue developing, potentially requiring eventual Supreme Court guidance to resolve the fundamental question of how strictly the Hague Service Convention‘s requirements should be interpreted in the digital age.
For practitioners representing clients in international disputes, the message remains clear: international litigation requires respect for established diplomatic frameworks, adequate planning for cross-border procedural requirements, and realistic budgeting for the time and expense of proper international service. While shortcuts may occasionally be available, they should never be assumed or relied upon as a primary strategy.
Get in touch with All Language Alliance, Inc. to obtain legal translation of the complaint, the summons, and exhibits to French, Italian, Spanish, German, and other foreign languages for international service of process in the countries where the foreign defendants reside.
Case Discussed:
Ultra International Music Publishing, LLC and Ultra Music Publishing Europe AG v. Sony Music Entertainment, et al., Court No. 24 Civ. 9149 (RA) (GS), 2025 WL 670842 (S.D.N.Y. Mar. 3, 2025).
#alllanguagealliance #HagueServiceConvention #legaltranslationservices #certifiedtranslationservices #legaldocumenttranslation #complainttranslation #summonstranslation #internationalserviceofprocess #HagueService