E-SOP's fables: recent developments in electronic service of process.

I previously discussed the trend and history of electronic service of process (e-SOP) in "You've Got Mail: The Modern,Trend (T)owards Universal Electronic Service of Process, (YGM). (1) Since the publication of that article, e-SOP has continued to come of age. This article briefly summarizes YGM and discusses recent e-SOP developments since its publication.

YGM REVISITED

In YGM, I reviewed the history of e-SOP and suggested that there was a trend in the law towards e-SOP and electronic service and filing generally in the federal court system. Indeed, since YGM was published, the vast majority of federal district and bankruptcy courts in the have adopted CM/ECF (i.e., case management/electronic case files). Moreover, courts have increasingly authorized e-SOP.

YGM discussed expanding notions of personal jurisdiction and the consequent expansion of the territorial scope of service of process. As the national economy expanded in the 19th and 20th centuries, Pennoyer's (2) concept of personal jurisdiction predicated upon "presence" in the forum yielded to the more flexible minimum contacts standard adopted in International Shoe. (3) Likewise, soon after the jurisdictional revolution of International Shoe, the Supreme Court embraced a flexible standard of constitutionally permissible notice in Mullane, (4) which held that service of process was constitutional as long as it was "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." YGM concluded by noting that the technological and industrial advances that resulted in the expansion of the rigid territorial notion of personal jurisdiction in the middle of the 20th century paralleled the effect that e-mail and the Internet had on international and inter-jurisdictional contacts in the late 20th and early 21st centuries.

YGM: E-SOP UNDER THE FEDERAL RULES OF CIVIL PROCEDURE

The second part of YGM discussed e-SOP upon parties located outside the United States under the Federal Rules of Civil Procedure. Rule 4(h)(2) authorizes service of process on business entities outside the United States via the same methods of service that are permissible for individuals under Rule 4(f), with the exception of personal delivery. Rule 4(h)(2) provides in relevant part:

(h) Service Upon Corporations and Associations. Unless otherwise provided by federal law, service upon a domestic or foreign corporation ... from which a waiver of service has not been obtained and filed, shall be effected:... (2) in a place not within any judicial district of the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph 2(C)(i) thereof.

Accordingly, Rule 4(f) prescribes the methods of service for individuals and corporations outside the United States. Rule 4(f) provides in relevant part that:

(f) Service Upon Individuals in a Foreign Country. Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and flied, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory or letter of request; or (C) unless prohibited by the law of the foreign country by (i) delivery to the individual personally of a copy of the summons and the complaint; or (ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.

In other words, subpart (f)(1) permits service by any means established by international agreement, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, when such means are "reasonably calculated to give notice" to the defendant. When no treaty exists or a treaty is silent as to appropriate methods of service, subpart (f)(2) permits service by (A) any method provided by local foreign law; (B) letter rogatory; or (C) where not prohibited by local law, by personal service or "any form of mail" dispatched by the clerk of the court requiring a signed receipt. Finally, subpart (f)(3) permits service by "other means" as long as such means are "not prohibited by international agreement" and are "directed by the court."

Service pursuant to Rule 4(f)(3) stands on equal footing with service pursuant to Rule 4(f)(1) or Rule 4(f)(2). In Rio Properties, the Ninth Circuit held that service under Rule 4(f)(3) is "neither a 'last resort' nor 'extraordinary relief'" that may only be used after service is attempted under either Rule 4(f)(1) or Rule 4(f)(2). (5) Indeed, "court-directed service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 4(f)(2).... [inasmuch as] Rule 4(f)(3) is one of three separately numbered subsections in Rule 4(f) ... [separated] by the simple conjunction 'or.'" (6)

Courts permitting electronic service of process on parties outside the United States have relied on Rule 4(f)(3). (7) Once a federal court directs electronic service, the only remaining hurdle under Rule 4(f)(3) is that the method so directed is "not prohibited by international agreement." (8) Indeed, as long as the authorized method of service is not prohibited by international agreement, it need not comply with foreign law. Consequently, in many instances, courts must examine the Hague Convention when ascertaining whether to permit electronic service of process.

The Hague Convention neither explicitly authorizes nor explicitly prohibits service of process by email, which is not surprising because it was promulgated in 1965. Article 10(a) of the Hague Convention permits litigants to "send judicial documents, by postal channels, directly to persons abroad" if the "State of destination does not object." (9) Consequently, the Hague Convention arguably permits service by electronic means because such means constitute "postal channels" within the meaning of Article 10(a). (10) Inasmuch as electronic service is arguably permitted by the Hague Convention, and in any event is not expressly prohibited by it, electronic service is permissible under Rule 4(f)(3). The Inter-American Convention on Letters Rogatory (IACLR) (11) is another relevant international agreement. The IACLR provides in relevant part that "letters rogatory may be transmitted." Courts have construed such language to mean that the IACLR provides one method of service, but "does not preempt all other means of service." (12) Accordingly, electronic service of process is permissible under Rule 4(f)(3) when directed by the …