What happens if you file a lawsuit against an individual in a foreign country and find difficulty in serving the individual with the Summons and Complaint? This is a very common issue faced by plaintiffs who seek relief from individuals who are based outside of the United States.
A recent ruling in the U.S. District Court for the Northern District of Illinois sheds light on one simplistic option — email. The Plaintiff, Volkswagen Group of America, Inc. sued certain defendants, including China-based online marketplace operators, under the Lanham Act. The moving defendants sought dismissal for improper service of process. The motion was denied.
Rule 4(f) of the Federal Rules of Civil Procedure is controlling with regard to proper service of an individual in a foreign country in an initiated federal lawsuit. Rule 4(f)(1) says that service can be accomplished “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention.” Rule 4(f)(3) permits service “by other means not prohibited by international agreement, as the court orders.” That is fairly broad language.
The court ruled, and indicated that it similarly held in other cases, that a plaintiff does not need to comply with or even attempt service under the Hague Convention before seeking an order for alternative service under Rule 4(f)(3), such as through email correspondence.
Importantly, a plaintiff must first seek relief from the court to serve a defendant in such a manner. In the instant case, Volkswagen Group of America, Inc. had asked for permission and received it prior to attempting service via email.
“This Court exercised that discretion in granting Plaintiff’s motion, and continues to believe it was appropriate to do so due to the nature of Defendants’ e-commerce businesses and unknown physical addresses; the need for speed in obtaining injunctive relief; and the likely delay in serving the Moving Defendants through the Chinese Central Authority during the COVID-19 pandemic,” stated the court’s order.