Service by Alternate Means

To initiate a complaint in federal court, a plaintiff must serve a copy of the complaint and summons on the defendant(s).  Service on foreign defendants is often governed by the procedures set forth in the Hague Convention, which applies to over 120 countries, including the United States and China.  This procedure generally requires service on a designated Central Authority in the destination state, which then attempts to effectuate service in accordance with the laws of that state.  Service via this process can take four months or more in China, depending on the backlog at the Chinese Central Authority, and can be subject to numerous difficulties (such as when foreign entities sell through third-party platforms such as Amazon and fail to provide accurate contact information), leading many plaintiffs to seek leave to serve by email or other alternative means.

In Whoop, Inc. v. Shenzhen Lexqi Electronic Technology Co., Ltd. (D. Mass. 25-cv-12690), Whoop accused Shenshen Lexqi, a Chinese company, of infringing its trade dress in health monitoring devices. China and the United States are both signatories to the Hague Convention covering the service of judicial documents on foreign entities.  The Hague Convention was signed in 1965, well before the invention of email or websites.  Service under the Hague Convention can take a considerable length of time – the average time for service is four to six months at a minimum, and occasionally service can take more than a year.  In the Whoop case, the plaintiff sought to short-circuit this process, asking the court for leave under FRCP 4(f)(3) to serve a complaint, summons and motion for preliminary injunction on a U.S.-based attorney who had represented the defendant in pre-suit discussions about the claim.  Whoop had first attempted to serve the complaint on the FCC-required U.S.-based agents that defendant employed in connection with its selling radio frequency devices.  One appeared to not be at the address identified, and when contacted by email denied that it was an agent and refused to provide a street address.  Likewise, the other two agents appeared to no longer be at the reported addresses.

Whoop then sought this order without first having attempted service under the Hague (which is understandable, given the time-frames involved as well as the recognized unreliability of the Chinese Central Authority, who is responsible for actually serving the defendant once the relevant papers have made their way to the country).

Judge Saylor denied this motion without prejudice to its being refiled if attempted service via the Hague Convention proved unsuccessful.  He first looked to whether a plaintiff must attempt service through the Hague before seeking alternate means of service, noting that the First Circuit has held that FRCP 4, by its plain terms, does not require exhaustion of all possible methods of service before a court may authorize service by “other means” such as service through counsel.  The District Court in Massachusetts has nevertheless repeatedly held that an attempt to serve via the Hague must be made prior to authorizing alternate service.  Judge Saylor determined that the Hague, being the supreme law of the land (as international treaties are deemed to be under the Constitution), represented a decision by the political branches of the country as to how best balance the concerns of judicial economy, fair notice, and respect for national sovereignty, and determined that such an attempt must first be made.  In so doing, he noted that the attempts to serve the agents required by the FCC may well not have been effective even if service had been achieved, as the requirement covered agents only for matters related to matters before the FCC, which this case was not.

Judge Saylor noted as well that service on the U.S attorney of a foreign entity would likely not be sufficient.  FRCP 4(h)(2) provides that a foreign corporation must be served in a manner prescribed by Rule 4(f) if the corporation is served outside of the U.S. or by Rule 4(e)(1) is within the U.S., which for most states (including Massachusetts) requires service via the Hague Convention, which does not permit service via a U.S. attorney.

In a different case, Magistrate Judge Robertson granted a motion for alternative service by email on a foreign defendant.  In Mestek, Inc. v. Shenzhen Mestek Electronics Co. Ltd. (24-cv-30155), the Plaintiff sent a cease-and-desist letter alleging trademark infringement to the Defendant via email.  The Defendant’s sales director responded, confirming receipt.  When notified that a complaint had been filed and service of process was being initiated, the sales director refused to waive service and stated that any attempt at service via email would not comply with Chinese law or the Hague Convention and may therefore be deemed defective.

After service through the Hague proved impossible (due to the address identified on the Defendant’s website and in the sales director’s emails being nonexistent), the director refused to provide a proper address for service, the Plaintiff sought leave to serve by email.

The Court noted that the Hague requires an attempt at service through the Hague, which the Plaintiff’s efforts met.  Judge Robertson further noted that, by its own terms, the Hague Convention does not apply where the address of the entity to be served is not known.  She determined that the Plaintiff’s efforts at obtaining a proper address, which included having a Far East investigator review the Defendant’s corporate filings and conferring with Chinese authority, sufficed to demonstrate that the address could not be ascertained.  She further found that the Defendant had shown that it would likely receive service via email, as it had responded through its sales director to communications over email regarding the matter.  Accordingly, she allowed service by email.