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Foreign Defendants: Alternative Service via e-Mail

BY Richard Raysman
June 29, 2009

In today's business world, a physical office or other traditional infrastructure is no longer required, which may be good for commerce, but occasionally troublesome for litigants. Web-based entities located abroad or individuals who rely solely on electronic mail to communicate can be especially difficult to locate, and litigants faced with an international “e-business scofflaw” that is evading service of process often discover that e-mail may be the sole method for effecting service. In response, federal courts are increasingly allowing litigants to serve foreign defendants via e-mail under certain circumstances.

Alternative Means of Service under Rule 4(f)

Under Federal Rule of Civil Procedure (“Rule”) 4(h)(2), if a business is not located within the United States, service of process is conducted according to Rule 4(f), which describes the manner for serving an individual in a foreign country. Under Rule 4(f), service of process may be effected in one of three ways: 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) absent internationally agreed means, by a method that is reasonably calculated to give notice, as prescribed by the foreign country's laws for service of process or via letters rogatory, or, if permitted by foreign law, via personal service or via regular mail addressed by the clerk of the court; or 3) by other means not prohibited by international agreement, as the court orders. Fed. R. Civ. P 4(f)(1)-(3).

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