Case 22-1810, Document 83, 04/19/2023, 3501485, Page1 of 31

22-1810-cv
United States Court of Appeals
for the

Second Circuit
SMART STUDY CO., LTD.,
Plaintiff-Appellant,
ABC,
Plaintiff,
– v. –
HAPPY PARTY-001, SALIMHIB-US, GEGEONLY, NA-AMZ001, LICHE
CUPCAKE STAND, BEIJINGKANGXINTANGSHANGMAOYOUXIANGONGSI,
QINGSHU, CKYPEE, WCH-US, THEGUARD, SUJIUMAISUSU, MARY
GOOD SHOP, HEARTLAND GO, BLUE VIVI, SMSCHHX, NAGIWART,
XUANNINGSHANGWU, QT-US, LADYBEETLE, TONGMUMY,
WONDERFUL MEMORIES, KANGXINSHENG1, ACUTEYE-US,
NUOTING, TELIKE, HAOCHENG-TRADE, YAMMO202,
––––––––––––––––––––––––––––––
(For Continuation of Caption See Inside Cover)
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR AMICI CURIAE PROFESSORS WILLIAM S. DODGE AND

MAGGIE K. GARDNER IN SUPPORT OF AFFIRMING
THE DISTRICT COURT’S ORDER

KATHERINE BURGHARDT KRAMER

DGW KRAMER LLP
Attorneys for Amici Curiae
One Rockefeller Plaza, Suite 1060
New York, New York 10020
(917) 633-6860
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page2 of 31

SHENZHENSHIXINDAJIXIEYOUXIANGONGSI, UNE PETITE

MOUETTE, JOYSAIL, XUIYUI7I, ZINGON US, HAITING$,
YONGCHUNCHENGQINGMAOYIYOUXIANGONGSI, HUIBI-US,
FAMING, BONUSWEN, APZNOE-US, DAZZPARTY, DAFA
INTERNATIONAL, YICHENY US, WOW GIFT, JYOKER-US1,
SAM CLAYTONDDG, CITIHOMY, WEN MIKE, YOOFLY,
CHANGGESHANGMAOYOUXIANGONGSI, SENSIAMZ
BACKDROP, VETERANS CLUB,
Defendants-Appellees,
DEF, TUOYI TOYS, TOPIVOT, LVYUN, SUNNYLIFYAU, XUEHUA INC.,
SMASSY US, YLILILY, GAIFEI TRADE CO LTD.,
Defendants.
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page3 of 31

TABLE OF CONTENTS

Interest of Amici.........................................................................................................1

Introduction and Summary of Argument ...................................................................2

Argument....................................................................................................................6

I. The Hague Service Convention Does Not Permit Service by Email. .................6

A. The Convention Does Not Expressly Authorize Service by Electronic

Means. .................................................................................................................7

B. Methods of Service Not Expressly Authorized by the Convention Are

Prohibited. ...........................................................................................................9

C. The Negotiating History and Views of Other Contracting States Confirm

that the Convention is Exclusive....................................................................... 11
II. If the Convention Applies, Rule 4(f) Does Not Permit Service by Means
Not Expressly Authorized in the Convention. ......................................................16
A. The Clear Language of Rule 4(f) Requires Service in Compliance with the
Convention. .......................................................................................................17
B. Appellant’s “Urgency” Argument Misreads the Advisory Committee Notes
and Conflicts with the Clear Language of the Convention. ..............................19
III. Service by Email on a Defendant Abroad May Still Be Permissible When
the Convention Does Not Apply. ..........................................................................23
Conclusion ...............................................................................................................25

i
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page4 of 31

TABLE OF AUTHORITIES

Cases
Abbott v. Abbott, 560 U.S. 1 (2010) .........................................................................14

Air France v. Saks, 470 U.S. 392 (1985) ...................................................................7

Amazon.com Inc. v. Robojap Techs. LLC, No. C20-694 MJP, 2021 WL 4893426,
(W.D. Wash. Oct. 20, 2021) ....................................................................................3
Anova Applied Elecs., Inc. v. Hong King Grp., Ltd., 334 F.R.D. 465 (D. Mass.
2020) .......................................................................................................................3

Facebook, Inc. v. 9 Xiu Network (Shenzhen) Technology Co., Ltd., 480 F. Supp. 3d
977 (N.D. Cal. 2020) ..............................................................................................3
Freedom Watch, Inc. v. Org. of the Petroleum Exporting Countries, 766 F.3d 74
(D.C. Cir. 2014) ....................................................................................................26

Kadmon Corp., LLC v. Ltd. Liab. Co. Oncon, No. 22-CV-5271 (LJL), 2023 WL
2346340 (S.D.N.Y. Mar. 3, 2023)...........................................................................3
Kyjen Co., LLC v. Individuals, Corps., Ltd. Liab. Companies, Partnerships, &
Unincorporated Associations Identified on Schedule A to the Complaint, No. 23
CIV. 612 (JHR), 2023 WL 1345781 (S.D.N.Y. Jan. 31, 2023) ..............................3
Prem Sales, LLC v. Guangdong Chigo Heating & Ventilation Equip. Co., 494 F.
Supp. 3d 404 (N.D. Tex. 2020)...............................................................................3

Rio Props, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) .......................26
Smart Study Co., Ltd. v. Acuteye-Us, 1:21-CV-5860-GHW, 2022 WL 2872297
(S.D.N.Y. July 21, 2022) .............................................................................. passim

Societe Nationale Industrielle Aerospatiale v. District Court, 482 U.S. 522 (1987)
..............................................................................................................................10

Topstone Commc’ns, Inc. v. Xu, 603 F. Supp. 3d 493 (S.D. Tex. 2022) ....................3
Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) .................... passim

Water Splash, Inc. v. Menon, 581 U.S. 271 (2017) .......................................... passim

ii
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page5 of 31

Other Authorities

B. Ristau, International Judicial Assistance § 4–1–5, p. 160 (2000 rev. ed.) ... 12, 13

Advisory Committee Note, Rule 4(f) ..................................................................5, 22

Conclusions of the Special Commission Held from 6-8 April 2004 on General
Affairs and Policy of the Conference ............................................................ 13, 15
Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163
(1969)............................................................................................................ passim

Hague Conference on Private International Law, Conclusions and

Recommendations Adopted by the Special Commission on the Practical
Operation of the Apostille, Evidence and Service Conventions ¶ 73 (2003) .......13
Hague Conference on Private International Law, Conclusions and
Recommendations Adopted by the Special Commission on the Practical
Operation of the Hague Apostille, Service, Taking of Evidence and Access to
Justice Conventions ¶ 12 (2009) ..........................................................................14
John F. Coyle, Robin Effron & Maggie Gardner, Contracting Around the Hague
Service Convention, 53 U.C. Davis Law Review Online 53 (2019) ...................24

Office of International Judicial Assistance Guidance on Service Abroad in U.S.

Litigation...............................................................................................................16
Permanent Bureau of the Hague Conference of Private International Law, Practical
Handbook on the Operation of the Service Convention ¶ 30 (2016) 14, 15, 21, 24

Report of the Council on General Affairs and Policy of the Conference of 31

March to 2 April 2009 ..........................................................................................14

Hague Service Convention, Status Table ...................................................................6

Rules

Federal Rule of Civil Procedure 4(f) ............................................................... passim

Federal Rule of Civil Procedure 4(h)(2) ..................................................................17

Federal Rule of Civil Procedure 65 .........................................................................21

iii
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page6 of 31

Interest of Amici1

Amici are professors who teach and write about transnational litigation.

William S. Dodge is Martin Luther King, Jr. Professor of Law and John D.

Ayer Chair in Business Law at the University of California, Davis, School of Law.

He is a reporter for the Restatement (Fourth) of the Foreign Relations Law of the

United States, a co-author of Transnational Litigation in Nutshell (with George A.

Bermann & Donald E. Childress III), and a founding editor of the Transnational

Litigation Blog (www.tlblog.org).

Maggie Gardner is a Professor of Law at Cornell Law School. Her articles

on transnational litigation, including the Hague Service Convention, have appeared

in such journals as Stanford Law Review, NYU Law Review, Virginia Law Review,

and University of Pennsylvania Law Review. She is also a founding editor of the

Transnational Litigation Blog (www.tlblog.org).

Amici believe that their expertise may be particularly helpful in a case like

this one, in which none of the appellees filed a brief.

1
No person or entity other than Amici and their counsel authored the brief in whole or in part.
No person or entity other than Amici and their counsel contributed money intended to fund
preparing or submitting the brief.

1
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page7 of 31

Introduction and Summary of Argument

This case presents a common fact pattern. Plaintiff filed a complaint under

seal against alleged counterfeiters in China selling products on Amazon and other

electronic platforms. Shortly thereafter, Plaintiff filed an ex parte application for a

temporary restraining order, an order to freeze the defendants’ assets, and an order

authorizing service by email. The district court granted the application. When the

defendants failed to appear, the clerk issued a certificate of default.

The problem, as the district court later discovered, is that the Hague Service

Convention, to which both China and the United States are parties, does not permit

service by email. See Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T.

361, 658 U.N.T.S. 163 (1969) [hereinafter Hague Service Convention or

Convention]. “The Court’s previous decision was decided in a vacuum,” Judge

Woods explained. “Plaintiff’s application for a TRO was not opposed, and Plaintiff

wholly failed to bring to the Court’s attention any precedent that had determined

that service under the Hague Convention was not permitted.” Smart Study Co., Ltd.

v. Acuteye-Us, 1:21-CV-5860-GHW, 2022 WL 2872297, at *11 n.5. (S.D.N.Y. July

21, 2022).2

2
On appeal, Appellant has continued to cite only decisions that agree with its position. For just a
sampling of decisions disagreeing with Appellant’s position, see, e.g., Kadmon Corp., LLC v.
Ltd. Liab. Co. Oncon, No. 22-CV-5271 (LJL), 2023 WL 2346340, at *4 (S.D.N.Y. Mar. 3, 2023);

2
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page8 of 31

Amici are concerned that federal district courts are routinely violating the

United States’ international treaty obligations in cases like this one by ordering

service by means that are not permitted under the Hague Service Convention. See

Dkt. 27 (Appendix Vol. 1), p. A-21 to A-22 (Judge Woods’s order noting that “the

issues involve substantial concerns regarding the treaty obligations of the United

States and the People’s Republic of China.”) These courts are not violating the

Convention deliberately but rather because the ex parte nature of the proceedings

leaves them ill-informed about U.S. obligations under the Convention. Guidance

from this Court is urgently needed to clarify the Convention’s requirements and

avoid further treaty violations.3

“[C]ompliance with the Convention is mandatory in all cases to which it

applies.” Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). The

Kyjen Co., LLC v. Individuals, Corps., Ltd. Liab. Companies, Partnerships, & Unincorporated
Associations Identified on Schedule A to the Complaint, No. 23 CIV. 612 (JHR), 2023 WL
1345781, at *2 (S.D.N.Y. Jan. 31, 2023); Topstone Commc’ns, Inc. v. Xu, 603 F. Supp. 3d 493,
500 (S.D. Tex. 2022); Amazon.com Inc. v. Robojap Techs. LLC, No. C20-694 MJP, 2021 WL
4893426, at *2 (W.D. Wash. Oct. 20, 2021); Prem Sales, LLC v. Guangdong Chigo Heating &
Ventilation Equip. Co., 494 F. Supp. 3d 404, 417 (N.D. Tex. 2020); Facebook, Inc. v. 9 Xiu
Network (Shenzhen) Technology Co., Ltd., 480 F. Supp. 3d 977, 983 (N.D. Cal. 2020); Anova
Applied Elecs., Inc. v. Hong King Grp., Ltd., 334 F.R.D. 465, 472 (D. Mass. 2020).

3
If the briefing on appeal leaves this Court in any doubt, Amici respectfully suggest that the
Court request the views of the U.S. Department of State on the proper interpretation of the
Convention. Accord Dkt. 27 (Appendix Vol. 1), p. A-21 to A-22 (Judge Woods’s order suggesting
that “the viewpoints of the state actors whose treaties and laws are at issue here” might “serve a
valuable role in informing further analysis of the issues”).

3
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page9 of 31

text and structure of the Convention establish that its specified methods of service

are exclusive and that unspecified methods of service are prohibited. The principal

means of service under the Convention is through a Central Authority designated

by each contracting state. Other means of service are permitted, including via

“postal channels,” but only with the receiving state’s consent.

The fact that each of the alternative means authorized by the Convention

requires the receiving state’s consent makes clear that means not authorized by the

Convention are prohibited. The negotiating history of the Convention, the

unanimous views of the contracting states expressed during two Special

Commissions, and the views of the Permanent Bureau of the Hague Conference on

Private International Law (which administers the Convention), also establish the

“exclusive” character of the Convention. Because service by email is not expressly

authorized by the Convention, it is prohibited.

When the Convention applies, therefore, a district court may not order

service by email under Federal Rule of Civil Procedure 4(f) unless the receiving

state has expressly authorized email service in international cases. Rule 4(f)(1)

authorizes service by internationally agreed means and specifically mentions the

Convention, but the Convention does not permit service by email. Rule 4(f)(2)

applies only if there is no internationally agreed means or if the international

agreement permits other means, which is not true of the Convention. And Rule

4
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page10 of 31

4(f)(3) allows a court to order only “other means not prohibited by international

agreement.”

Appellant relies on Article 15 of the Convention and a 1993 Advisory

Committee Note to Rule 4(f)(3) as authorizing special forms of service in cases of

urgency. But Article 15 only permits the granting of provisional relief absent

service under the Convention; it does not waive the requirement that service under

the Convention at least be attempted before any judgment be entered against a

defendant. The Advisory Committee note is unclear, and, in any event, it cannot

alter the plain language of Rule 4(f)(3), which limits service to means “not

prohibited by international agreement,” and the plain language of Article 15, which

requires at least an attempt at service under the Convention before granting a

default judgment.

Holding that service by email is not permitted when the Hague Service

Convention applies will not prevent service by email in all transnational cases. By

its terms, the Convention does not apply “where the address of the person to be

served with the document is not known.” Hague Service Convention art. 1.

Appellant asserts that counterfeiters often conceal their physical addresses, in

which case the Convention by its own terms would not apply and service by email

may be permissible under Rule 4(f)(3). But Amici caution that courts should

require a meaningful showing of effort to ascertain foreign defendants’ physical

5
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page11 of 31

addresses. Otherwise, given the ex parte nature of requests for alternative methods

of service, district courts may again become unwitting accomplices in violating

U.S. treaty obligations.

Argument

I. The Hague Service Convention Does Not Permit Service by Email.

The Hague Service Convention is a multilateral treaty intended “to simplify,

standardize, and generally improve the process of serving documents abroad.”

Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017). It currently has 80

contracting parties, including the United States and the People’s Republic of China.

See Status Table, https://www.hcch.net/en/instruments/conventions/status-

table/?cid=17.

The Supreme Court has held that “compliance with the Convention is

mandatory in all cases to which it applies.” Schlunk, 486 U.S. at 705. The text and

structure of the Hague Service Convention establish that its specified methods of

service are exclusive and that unspecified methods of service are prohibited. If any

doubt remains, “the history of the treaty, the negotiations, and the practical

construction adopted by the parties,” id. at 700 (quoting Air France v. Saks, 470

U.S. 392, 396 (1985)), further show that the Convention is exclusive and therefore

does not permit service by email.

6
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page12 of 31

A. The Convention Does Not Expressly Authorize Service by

Electronic Means.

As the Supreme Court noted in Schlunk, “[t]he primary innovation of the

Convention is that it requires each state to establish a central authority to receive

requests for service of documents from other countries.” Id. at 698. Article 2 of the

Convention requires each contracting state to “designate a Central Authority which

will undertake to receive requests for service coming from other Contracting

States.” Hague Service Convention. When a Central Authority receives such a

request, it serves the document (or arranges for service) in accordance with its

internal law, id. art. 5, and returns a certificate of service to the applicant, id. art. 6.

“Submitting a request to a central authority is not, however, the only method

of service approved by the Convention.” Water Splash, 581 U.S. at 275. Article 8

of the Convention allows each contracting state to effect service without

compulsion through its diplomatic or consular agents, subject to the state of

destination’s right to object to such service. The right to object does not extend to

service on nationals of the serving state. Hague Service Convention art. 8. China

has objected to service under Article 8 except for service on nationals of the

serving state. See China—Declarations and Notifications,

https://www.hcch.net/en/instruments/conventions/status-

table/notifications/?csid=393&disp=resdn.

7
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page13 of 31

Article 10 allows service via “postal channels” or by “the judicial officers,

officials or other competent persons of the State of destination,” again subject to

the receiving state’s right to object. Hague Service Convention art. 10. China has

objected to all means of service under Article 10. See China—Declarations and

Notifications, https://www.hcch.net/en/instruments/conventions/status-

table/notifications/?csid=393&disp=resdn.

Article 11 of the Convention allows two or more contracting states to agree

on “channels of transmission other than those provided for in the preceding

Articles.” Hague Service Convention art. 11. China and the United States have not

agreed on additional channels of transmission.

Finally, Article 19 of the Convention provides: “To the extent that the

internal law of a Contracting State permits methods of transmission, other than

those provided for in the preceding Articles, of documents coming from abroad, for

service within its territory, the present Convention shall not affect such

provisions.” Hague Service Convention art. 19. Appellant has not identified any

provision of Chinese law (and Amici are not aware of any) that allows a plaintiff

outside of China to effectuate service of process by email directly on a defendant

located in China.

Based on information presented by an expert chosen by the district court and

another expert chosen by the Appellant, the district court concluded that the

8
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page14 of 31

provisions of Chinese law permitting service by email are limited to service made

by a Chinese People’s Court. Smart Study, 2022 WL 2872297, at *11-12. This is

consistent with the fact that “in China, the courts themselves serve documents on

litigants.” Id. at 12 (quoting Brief of Amici Curiae on Service by Electronic Means

on Chinese Residents Under Chinese Law at 2). Although Amici are not experts on

Chinese law, they see no reason to doubt the district court’s conclusion on this

point.

The Hague Service Convention makes no mention of email or other

electronic means of service. This is not surprising because the Convention was

concluded in 1965.

B. Methods of Service Not Expressly Authorized by the Convention

Are Prohibited.

In interpreting treaties, the court must begin “with the text of the treaty and

the context in which the written words are used.” Schlunk, 486 U. S. at 699

(quoting Societe Nationale Industrielle Aerospatiale v. District Court, 482 U.S.

522, 534 (1987)). The “text and structure” of the Hague Service Convention, Water

Splash, 581 U.S. at 279, belie Appellant’s attempt to read permission for additional

methods of service into the Convention’s silence.

Several of the Convention’s provisions make sense only if the Convention’s

listed methods of service are exclusive. Consider Article 11, which allows

9
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page15 of 31

contracting states to agree to additional means of service not specified in the

Convention, and Article 19, which allows each contracting state to permit

additional means of service from abroad in its own domestic law. As Judge Woods

explained below, “those articles would be largely superfluous if litigants could

serve a party in another country merely by selecting a method that is not expressly

listed in the Hague Convention.” Smart Study, 2022 WL 2872297, at *8.

Likewise, Articles 8 and 10 authorize certain additional means of service,

including service by “postal channels,” so long as a country does not object to

them. Here the illogic of Appellant’s position is most apparent: contracting states

may affirmatively object to service by mail if they do not wish to permit it, as

China has done. But contracting states have no similar option for objecting to

service by email or other electronic means. As the district court explained, “if the

Convention’s silence as to a method of service implicitly authorizes that service,

there would be no ready way to object to that method of service.” Id. at *10.

That the treaty negotiators provided express means for objecting to

additional methods of service identified in the Convention reflects their assumption

that methods not mentioned in the Convention did not require a means for

objection because they were prohibited. In short, Appellant’s reading is

“structurally implausible” because it renders multiple articles of the Convention

“superfluous.” Water Splash, 581 U.S. at 278.

10
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page16 of 31

Appellant’s brief fails to engage with the district court’s reasoning based on

the structure of the Convention. Other than pointing out that a passage from Water

Splash that the district court quoted was dictum, see Smart Study Br. 24-26, the

Appellant’s only other argument on this point reads, in its entirety, as follows:

“there is simply no provision in the Hague [Service Convention] that expressly

limits service to the methods delineated—of which email is clearly not one, given

that it was not in existence when the Hague was drafted.” Id. at 26. This argument

misses the point.

The point is that the exclusive character of the Hague Service Convention

runs throughout its structure. The Convention provides one principal means of

service: through each country’s Central Authority. It also allows countries to

consent to additional means either by failing to object to the specific measures

listed under Articles 8 and 10 or by affirmatively agreeing to additional means

under Articles 11 and 19. The fact that all these additional means turn on the

consent of the receiving state makes clear that the means of service set forth in the

Convention are exclusive.

C. The Negotiating History and Views of Other Contracting States

Confirm that the Convention is Exclusive.

In Water Splash, the Supreme Court found “[t]hree extratextual sources [to

be] especially helpful in ascertaining [the] meaning” of the Hague Service

11
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page17 of 31

Convention: “the Convention’s drafting history, the views of the Executive, and the

views of other signatories.” 581 U.S. at 280. All three sources support reading the

Convention to prohibit any means of service to which the receiving state has not

affirmatively consented.

The authoritative account of the Convention’s drafting history explains that

“[t]he drafting group considered at length the questions whether the Convention

should mandate that the means of service provided by the Convention constituted

the exclusive means of service of judicial documents in the territories of the

contracting states; whether any exceptions to such a rule should be permitted, and

if so, what types of exceptions should be permitted.” B. Ristau, International

Judicial Assistance § 4–1–5, p. 160 (2000 rev. ed.); see also Water Splash, 581 U.S.

at 281 (citing Ristau). During the negotiations, “certain revisions were made to

make it clear that the Convention machinery must be employed in all cases where

service of process abroad is sought.” Ristau § 4–1–5, p. 161. “Based on this design

of the Convention, the answer… is that the Convention machinery is obligatory,

except in instances where the state where service is to be made permits other

methods of service of foreign documents, or where service may be made in the

forum state on a domestic agent of the foreign defendant. Where a contracting state

formally objects to any manner of service of foreign documents in its territory

12
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page18 of 31

other than under the Convention, the conventional route becomes the exclusive

method of service in that state.” Id. at 162 (reference omitted).

The positions of other contracting states confirm the exclusive character of

the Convention. As the Supreme Court noted in Water Splash, “this Court has

given ‘considerable weight’ to the views of other parties to a treaty.” Water Splash,

581 U.S. at 283 (quoting Abbott v. Abbott, 560 U.S. 1, 16 (2010)). In 2003, a

Special Commission with representatives from 57 countries met in the Hague to

review the operation of the Convention. It unanimously adopted Conclusions and

Recommendations, paragraph 73 of which “confirmed the prevailing view that the

Convention was of a non-mandatory, but exclusive character.” Hague Conference

on Private International Law, Conclusions and Recommendations Adopted by the

Special Commission on the Practical Operation of the Apostille, Evidence and

Service Conventions ¶ 73 (2003), https://assets.hcch.net/docs/0edbc4f7-675b-

4b7b-8e1c-2c1998655a3e.pdf; see also Conclusions of the Special Commission

Held from 6-8 April 2004 on General Affairs and Policy of the Conference at 9

[hereinafter Conclusions of the 2004 Special Commission on General Affairs]

(“welcome[ing] the 82 conclusions and recommendations adopted by [the 2003

Special Commission] meeting”). By “exclusive,” the Special Commission meant

“whether or not the channels of transmission provided for by the Convention are

the only channels available.” See Permanent Bureau of the Hague Conference of

13
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page19 of 31

Private International Law, Practical Handbook on the Operation of the Service

Convention ¶ 30 (2016) [Practical Handbook] (emphasis removed).4

In 2009, another Special Commission met in the Hague with representatives

from 64 countries. It unanimously adopted Conclusions and Recommendations in

which it again “confirm[ed] the view that the Service Convention is of a non-

mandatory but exclusive character” and “note[d] with great satisfaction that the

non-mandatory but exclusive character of the Service Convention has not caused

any difficulties in the past five years.” Hague Conference on Private International

Law, Conclusions and Recommendations Adopted by the Special Commission on

the Practical Operation of the Hague Apostille, Service, Taking of Evidence and

Access to Justice Conventions ¶ 12 (2009), https://assets.hcch.net/docs/5bf65314-

4f55-42b5-9b0c-770f2bfccd37.pdf; see also Report of the Council on General

Affairs and Policy of the Conference of 31 March to 2 April 2009 at 14 [hereinafter

Report of the 2009 Council on General Affairs] (“welcom[ing] the successful

outcome of the [2009] Special Commission … and t[aking] note of its Conclusions

and Recommendations”). In Water Splash, the Supreme Court relied on the

4
By “non-mandatory,” the Special Commission meant that the law of the forum determines
whether there is occasion to transmit a document for service abroad. See Practical Handbook
¶ 30; see also Schlunk, 486 U.S. at 707 (holding that the Convention does not apply if internal
law permits substituted service on an agent located within the United States).

14
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page20 of 31

conclusions of Special Commissions as reflecting the views of parties to the

Convention. Water Splash, 581 U.S. at 283 & n.8.

Citing the Conclusions and Recommendations of these two Special

Commissions, the most recent edition of the Practical Handbook issued by the

Permanent Bureau of the Hague Conference on Private International Law states

that “the Convention’s exclusive character is now undisputed. Thus, if under the

law of the forum a judicial or extrajudicial document is to be transmitted abroad

for service, the Convention applies and it provides the relevant catalogue of

possible means of transmission for service abroad.” Practical Handbook ¶ 50

(emphasis added; other emphases removed). The Practical Handbook goes on to

observe that “[t]he exclusive character of the Convention was never really

disputed. It has been confirmed by case law and by legal scholars, as well as by the

Special Commission.” Id. ¶ 51 (emphases removed).

The United States shares this view of the exclusive nature of the Convention.

Representatives of the State Department’s Office of the Legal Adviser participated

in the meetings that “welcomed” the conclusions of the 2003 Special Commission

and “took note” of the conclusions of the 2009 Special Commission. See

Conclusions of the 2004 Special Commission on General Affairs at 4; Report of

the 2009 Council on General Affairs at 6. In addition, the Department of Justice’s

Office of International Judicial Assistance has explained that “[i]f the Convention

15
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page21 of 31

applies, parties cannot agree or stipulate to a method of service that the Convention

neither authorizes nor permits.” Office of International Judicial Assistance

Guidance on Service Abroad in U.S. Litigation,

https://www.justice.gov/civil/page/file/1064896/download, at 4-5 (last updated

Oct. 1, 2018); see also Water Splash, 581 U.S. at 282 n.5 (considering position

taken by State Department on its website). If this Court remains in doubt of the

views of the United States, Amici encourage the Court to solicit the Government’s

views directly.

In short, as in Water Splash, “the traditional tools of treaty interpretation

unmistakably demonstrate” that service by email is not permitted under the Hague

Service Convention. 581 U.S. at 284.

II. If the Convention Applies, Rule 4(f) Does Not Permit Service by Means

Not Expressly Authorized in the Convention.

Because the Convention only permits service by means that it expressly

authorizes, Rule 4(f) does not permit service by other means when the Convention

applies. The text of Rule 4(f) makes this clear, and Appellant’s contrary position

finds no support in either Article 15 of the Convention or in the Advisory

Committee Notes.

16
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page22 of 31

A. The Clear Language of Rule 4(f) Requires Service in Compliance

with the Convention.

Federal Rule of Civil Procedure 4(f) sets forth permissible methods of

service for an individual “at a place not within any judicial district of the United

States.” Federal Rule of Civil Procedure 4(h)(2) incorporates Rule 4(f) (with one

exception not relevant here) for service on a business “at a place not within any

judicial district of the United States.” Rule 4(f) identifies three options for such

international service:

(1) by any internationally agreed means of service that is reasonably

calculated to give notice, such as those authorized by the Hague Convention

on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international

agreement allows but does not specify other means, by a method that is

reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that

country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or

letter of request; or

(C) unless prohibited by the foreign country’s law, by:

17
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page23 of 31

(i) delivering a copy of the summons and of the complaint to

the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to

the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court

orders.

Rule 4(f)(1) authorizes service by internationally agreed means including the

Hague Service Convention. Service by email is not among those means. Rule

4(f)(2) applies only “if there is no internationally agreed means, or if an

international agreement allows but does not specify other means.”5 Because the

Hague Service Convention is exclusive, as established in Part II, it does not allow

“other means.”6 Therefore, when the Convention applies, the options listed under

Rule 4(f)(2) do not apply.

Rule 4(f)(3) authorizes a district court to order “other means not prohibited

by international agreement.” As established above in Part II, however, the Hague

5
An example of an “international agreement [that] allows but does not specify other means” is
the Inter-American Convention on Letters Rogatory, Jan. 30, 1975, S. Treaty Doc. No. 98-27
(1984), 1438 U.N.T.S. 287, to which the United States (but not China) is a state party.

6
Arguably, the Hague Service Convention “allows but does not specify other means” that
countries may permit pursuant to Articles 11 and 19. But because those permissions are limited
to the scope of the country’s consent, they may not encompass all the methods permitted under
Rule 4(f)(2). Permissible methods of service under Articles 11 and 19 are thus best applied via
Rule 4(f)(1).

18
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page24 of 31

Service Convention prohibits service through any means that it does not expressly

authorize, and the Convention does not expressly authorize service by email. Thus,

as the district court reasoned: “the Hague Convention prohibits service by email on

defendants located in China. Rule 4(f)(3) only permits service by ‘means not

prohibited by international agreement.’ Fed. R. Civ. P. 4(f)(3). Accordingly,

defendants were not properly served pursuant to Rule 4(f)(3).” Smart Study, 2022

WL 2872297, at *11.

B. Appellant’s “Urgency” Argument Misreads the Advisory

Committee Notes and Conflicts with the Clear Language of the

Convention.

Appellant seeks to avoid this conclusion by relying on Article 15 of the

Convention and the Advisory Committee Notes to Rule 4(f). Smart Study Br. 32-

36. Neither is availing.

Article 15 allows for the entry of default judgment against an absent

defendant, but only if the plaintiff has first attempted to serve the defendant in

accordance with the Convention. Article 15 reads in its entirety as follows:

Where a writ of summons or an equivalent document had to be

transmitted abroad for the purpose of service, under the provisions of the

present Convention, and the defendant has not appeared, judgment shall not

be given until it is established that—

19
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page25 of 31

a) the document was served by a method prescribed by the internal

law of the State addressed for the service of documents in domestic

actions upon persons who are within its territory, or

b) the document was actually delivered to the defendant or to his

residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in

sufficient time to enable the defendant to defend.

Each Contracting State shall be free to declare that the judge,

notwithstanding the provisions of the first paragraph of this Article, may

give judgment even if no certificate of service or delivery has been received,

if all the following conditions are fulfilled—

a) the document was transmitted by one of the methods provided for

in this Convention,

b) a period of time of not less than six months, considered adequate

by the judge in the particular case, has elapsed since the date of the

transmission of the document,

c) no certificate of any kind has been received, even though every

reasonable effort has been made to obtain it through the competent

authorities of the State addressed.

20
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page26 of 31

Notwithstanding the provisions of the preceding paragraphs the judge

may order, in case of urgency, any provisional or protective measures.

Hague Service Convention art. 15 (emphases added).

As the Practical Handbook explains, the first paragraph applies only “[w]hen

a writ of summons or an equivalent instrument has been transmitted abroad in

accordance with the Convention and the defendant does not appear.” Practical

Handbook ¶ 304 (emphasis altered). Similarly, the second paragraph applies by its

own terms only if “the document was transmitted by one of the methods provided

for in the Convention.” Hague Service Convention art. 15; accord Practical

Handbook ¶ 312. Far from authorizing extraordinary means of service not listed in

the Convention, these paragraphs require plaintiffs to at least make a good faith

effort to serve absent defendants via Convention procedures before a court may

issue a default judgment. Appellant has made no effort to serve the defendants

under the Convention.

The final paragraph of Article 15 does mention “case[s] of urgency.” It states

in full: “Notwithstanding the provisions of the preceding paragraphs the judge may

order, in case of urgency, any provisional or protective measures.” This allows a

district court, for example, to enter a temporary restraining order or preliminary

injunction, see Fed. R. Civ. P. 65, before a party has been served. But the plaintiff

is not seeking a “provisional or protective measure”; it is demanding judgment and

21
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page27 of 31

permanent injunction. For that end, service under the Convention must at least be

attempted. In short, nothing in Article 15 authorizes any form of service beyond

what is otherwise permitted by the Convention.

Appellant also invokes the Advisory Committee Note explaining the

adoption for Rule 4(f)(3). That Note states, as relevant here, “Paragraph [f](3)

authorizes the court to approve other methods of service not prohibited by

international agreements. The Hague Convention, for example, authorizes special

forms of service in cases of urgency if convention methods will not permit service

within the time required by the circumstances.” 146 F.R.D. 401, 569 (1993). This is

a reference to the final paragraph of Article 15—the only provision in the

Convention to mention “urgency”—which is explicit that it applies only to

provisional measures (and does not, in fact, say anything about “special forms of

service”). Although the Note could have been more precise, any ambiguity in its

explanation cannot alter the clear language of Rule 4(f)(3) and the Convention

itself. Rule 4(f)(3) allows a federal court to order alternative service only by “other

means not prohibited by international agreement,” and nothing in Article 15 waives

the requirement that service under the Convention at least be attempted before any

default judgment can be entered against an absent defendant.

22
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page28 of 31

III. Service by Email on a Defendant Abroad May Still Be Permissible

When the Convention Does Not Apply.

The Supreme Court has held that “compliance with the Convention is

mandatory in all cases to which it applies.” Schlunk, 486 U.S. at 705. Where it does

not apply, however, Rule 4(f) allows federal courts greater flexibility regarding

service of process. Under those circumstances, the provisions of Rule 4(f)(2) and

4(f)(3) would be available. Although Rule 4(f)(2) does not allow means of service

that are prohibited by the foreign country’s law, a district court also has “discretion

under Rule 4(f)(3) to authorize service even if the alternative means would

contravene foreign law.” Freedom Watch, Inc. v. Org. of the Petroleum Exporting

Countries, 766 F.3d 74, 84 (D.C. Cir. 2014); see also Rio Props, Inc. v. Rio Int’l

Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002) (noting that “as long as court-

directed and not prohibited by an international agreement, service of process

ordered under Rule 4(f)(3) may be accomplished in contravention of the laws of

the foreign country”).

By its terms, the Hague Service Convention “shall not apply where the

address of the person to be served with the document is not known.” Hague

Service Convention art. 1. Appellant asserts that “counterfeiters often use evasive

tactics like aliases, false addresses and other incomplete identification information

to deliberately conceal their identities and avoid detection.” Smart Study Br. 18-19.

23
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page29 of 31

If that is true, then often the Convention will not apply, and district courts will be

free to order service by email. See Practical Handbook, Appendix 8 ¶ 26

(acknowledging that “[c]ourts are increasingly faced with the problem of serving

process on defendants who are only traceable to an e-mail address or social

networking site” and explaining that, while “it should be recalled that the Service

Convention is exclusive,” the Convention “does not apply when the address of the

person to be served is not known”); id. ¶ 27 (concluding that “address” in Article I

means the defendant’s “physical address”).7

In this case, the district court held that Appellant “has not demonstrated that

it used reasonable diligence to determine the defendants’ physical addresses.”

Smart Study, 2022 WL 2872297, at *6. The Convention itself does not indicate the

degree of diligence required, and the Permanent Bureau of the Hague Conference

on Private International Law has stated that this question, like other conditions for

the applicability of the Convention, “are dependent on the law of the forum.”

Practical Handbook ¶ 96. In other words, U.S. courts are free to adopt any

reasonable, good faith interpretation of this provision.

7
Although it would not help in cases of intellectual property counterfeiting, Amici further note
that the parties to a transnational contract may avoid the requirements of the Hague Service
Convention by appointing agents for service of process in each of the parties’ countries so that
service can be made without transmitting documents abroad. See John F. Coyle, Robin Effron &
Maggie Gardner, Contracting Around the Hague Service Convention, 53 U.C. Davis Law
Review Online 53 (2019).

24
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page30 of 31

Amici take no position on the level of diligence in determining defendants’

physical addresses that should be expected of plaintiffs. But Amici emphasize once

again that requests to authorize service by email are frequently made ex parte,

which means that it rests entirely with the district judge to ensure that the address

of the person to be served is in fact unknown. The district judge must not simply

act as a rubber stamp for the plaintiff’s cursory assertions that addresses are

unknown, lest the exclusive procedures of the Hague Service Convention to which

the United States has agreed become an empty letter.

Conclusion

For the reasons above, this Court should affirm the decision of the district

court.

Dated: April 17, 2023

Respectfully submitted,

/s/ Katherine Burghardt Kramer

Katherine Burghardt Kramer, Esq.
DGW Kramer LLP
One Rockefeller Plaza, Suite 1060
New York, NY 10020
kkramer@dgwllp.com
(917) 688-2585
Counsel for Amici Curiae
William S. Dodge and
Maggie K. Gardner

25
 Case 22-1810, Document 83, 04/19/2023, 3501485, Page31 of 31

CERTIFICATE OF COMPLIANCE

This document complies with the type-volume limit of F.R.A.P. 29(a)(5)

because, excluding the parts of the documents exempted by F.R.A.P. 32(f), this

document contains 5,567 words, and this document complies with the typeface and

type-style requirements of F.R.A.P. 32(a)(5) and (6) because this document has

been prepared in a proportionally spaced typeface using Microsoft Word in 14

point Times New Roman font.

/s/ Katherine Burghardt Kramer

Katherine Burghardt Kramer

26