Service of process on a foreign defendant can be tricky. If the foreign defendant will not agree to waive service under Rule 4(d), a plaintiff is left with methods of service under Rule 4 that are often complex and time-consuming, and come with no guarantee that the service will ultimately be effective.
And while Rule 4 does not set a deadline for service of process on foreign defendants, as it does for domestic defendants, the time to serve is not unbounded. Helpfully, Rule 4 provides a fallback that opens up the door to other--perhaps less onerous--methods of service, including simply sending an email (in the right circumstances).
When Can You Serve by E-mail?
Last week Magistrate Judge Hall permitted service on a foreign defendant by email pursuant to FRCP 4(f)(3), which provides that, in addition to various other methods of service, service of process may be achieved "by other means not prohibited by international agreement, as the court orders."
As Judge Hall recounted, plaintiff DivX LLC first attempted service by certified mail on Taiwanese defendant Realtek Semiconductor Corp., but Realtek apparently refused to accept the mail delivery.
Meanwhile, Plaintiff's counsel and counsel for Realtek in a parallel ITC action on the same patents agreed to an FRCP 4(d) waiver of service—but just days later, Realtek's counsel walked back its agreement, and insisted that plaintiff serve via letters rogatory.
Plaintiff then sought the Court's permission to serve by e-mail under the "other means" provision of the rule
Judge Hall stated that
The undersigned is unaware of any international agreement that prohibits service of process on a Taiwanese corporation via e-mail to its U.S. counsel, and it appears that there isn’t any.
Having found that e-mail service is not prohibited by international agreement, she then addressed whether it comports with due process:
[H]aving examined the record before the Court, I find that service via e-mail to Realtek’s ITC counsel—who is actively defending Realtek in an ITC matter involving the same patents—and Mr. Benson—who the record suggests has already been contact with Realtek regarding the complaint in this action—are “reasonably calculated” to inform Realtek about this action.
She found that e-mail service was "particularly appropriate" here because plaintiff had made "reasonable efforts" to effectuate service on Realtek. She granted plaintiff's request for service by e-mail.
Will This Be a Reliable Way to Serve Foreign Defendants Going Forward?
It's unclear. It's possible that the defendant's disavowal of its agreement to waive service may have played into Judge Hall's decision, and not everyone will have those facts. But even in cases where there is no gamesmanship, it is worth keeping Rule 4(f)(3) in mind as a possible avenue for service on a foreign defendant.