Electronic Service on Defendants Governed by Hague Convention Permissible when Physical Addresses Are Not Reasonably Ascertainable

In The Kyjen Company, LLC v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A to the Complaint, 1:23-cv-00612-JHP (S.D.N.Y.), the Court permitted electronic service of process on certain foreign defendants, even though such service generally would have been prohibited under international law.

Plaintiff sought to serve process on eighty foreign entities allegedly selling products that its intellectual property rights.  Plaintiff did not know defendants’ physical addresses and therefore sought leave of court to serve process by email and publication.  This form of alternative service is permitted under Federal Rule of Civil Procedure 4(f), which allows service on foreign defendants “by any internationally agreed means of service that is reasonably calculated to give notice.”  On that basis, the court permitted service by email and publication on the foreign defendants’ whose service was governed only by Rule 4(f).

However, a substantial number of the defendants were believed to live in China, a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the “Hague Convention”).  The Hague Convention has been interpreted to prohibit service by email and publication within China.  However, the Hague Convention would not apply—and thus would not prohibit alternative service—if plaintiff were unable to discover the defendants’ physical addresses through the exercise of “reasonable diligence.”

On that basis, the court proceeded to analyze the reasonable diligence of plaintiff’s efforts to ascertain the physical address of each of the defendants believed to be residing in China.  The court ruled that plaintiff had exercised reasonable diligence as to certain defendants after the defendants’ only known contact, a Chinese e-commerce platform, refused to comply with a court order requiring the platform to disclose the defendants’ addresses.  The court ruled that plaintiff had also exercised reasonable diligence as to defendants whose addresses it failed to ascertain after conducting online investigations, engaging third parties to visit addresses found online, attempting postal deliveries to potential addresses, and calling phone numbers believed to be associated with the defendants.

However, the court denied leave to effect alternative service on thirty-five defendants because Plaintiff’s motion either failed to allege any efforts to contact those defendants or described attempts using , without explaining why additional methods were not attempted.  New York courts generally rule that reasonable diligence requires plaintiffs to attempt multiple means of contact.  As to these defendants, the court denied leave to use alternative service, but permitted plaintiff to supplement or renew its application after reasonably diligent efforts had been made.

Even where service is governed by the Hague Convention, courts retain discretion to permit alternative means of service, but plaintiffs must act diligently and must describe their efforts thoroughly to the court.  If you have questions about available methods of service, please contact Michael Rakower or Travis Mock.

Kyjen Decision

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