Foreign Defendants: Alternative Service via e-Mail

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).

Court-directed service under Rule 4(f)(3) is as favored as other methods of service, and is not “extraordinary relief”; rather, it is one of several methods to effectuate service of process on an international defendant. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). As a result, it is the trial court's task to determine when the particularities and necessities of a given case warrant alternate service. Studio A Entm't, Inc. v. Active Distribs., Inc., 2008 WL 162785 at *3 (N.D. Ohio Jan. 15, 2008). Nonetheless, the court may require the plaintiff to show that reasonable efforts to serve the defendant have already been attempted, and that court intervention will avoid subsequent futile attempts. Ryan v. Brunswick Corp., 2002 WL 1628933, at *2 (W.D.N.Y. May 31, 2002). Regardless of what method of process the court orders, that method must comply with constitutional notions of due process; that is, the method of service must be reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Rio Props., 284 F.3d at 1016-17.

Applying Rule 4(f)(3), courts have authorized various alternative methods of service in the past, including, among others, service by publication, delivery to the defendant's attorney, and, increasingly over the last several years, via e-mail. 1st Technology, LLC v. Digital Gaming Solutions S.A., 2008 U.S. Dist. LEXIS 88341 at *22 (E.D. Mo. Oct. 31, 2008). Indeed, with the growth of e-commerce, businesses increasingly reside in cyberspace, and e-mail may be the only means of effecting service of process. Rio Props., 284 F.3d at 1018; see also Williams-Sonoma Inc. v. Friendfinder Inc., 2007 U.S. Dist. LEXIS 31299 (N.D. Cal. Apr. 17, 2007) (authorizing service of process by e-mail on foreign Web site owners).

Alternative Service via E-mail Permitted

The Ninth Circuit was the first appeals court to recognize the propriety of service via e-mail under Rule 4(f)(3) when it affirmed a district court's choice of e-mail as one of several means used to serve a foreign company. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.2d 1007 (9th Cir. 2002). The appeals court concluded that e-mail service was appropriate because, after diligent investigation by the plaintiff, e-mail was the only reliable method for contacting the foreign defendant, given the failed attempts to serve the defendant at a foreign mailing address and at the address listed on defendant's domain name registration. Since the foreign defendant did not appear to use a physical address for communicating with its clients, but, instead, maintained a Web site, the court concluded that service via e-mail was reasonably calculated to provide the defendant notice of the suit. However, the Ninth Circuit expressly cautioned lower courts to “balance the limitations of e-mail service against its benefits in any particular case.” Id. at 1018.

Subsequently, in Williams v. Advertising Sex LLC, 231 F.R.D. 483 (N.D. W.V. 2005), the plaintiff sued multiple entities that allegedly conspired to defame her through the online circulation of a graphic video. After documenting that prior attempts only caused the defendants to erect barriers to formal service, the plaintiff moved to serve the defendants via e-mail and international registered and standard mail. In granting the motion, the court found that the defendants were “sophisticated participants in e-commerce” and that the plaintiff had demonstrated reliable e-mail addresses linked to established Web sites. Id. at 487. See also Bank Julius Baer & Co. Ltd v. Wikileaks, 2008 WL 413737 (N.D. Cal. Feb. 13, 2008) (service by e-mail permitted given that physical addresses of Web site business could not be effectively located and purported agents refused to accept service).

Federal courts have traditionally incorporated advances in technology to alternative methods of service for foreign defendants and in at least one case, a court has rebuffed arguments regarding the theoretical unreliability of e-mail service. For example, in Philip Morris USA Inc. v. Veles Ltd., 2007 WL 725412 (S.D.N.Y. Mar. 12, 2007), the defendants, having been served via e-mail as per court order, subsequently moved to dismiss for ineffective service. The court rejected the defendants' objections about the questionable dependability of e-mail service, particularly since the plaintiffs amply demonstrated the high likelihood that defendants would receive and respond to e-mail and defendants did not dispute actually receiving the e-mailed complaint.

Most recently, a California district court authorized alternative service upon an alleged foreign cybersquatter via e-mail and international mail where the plaintiff had documented prior unsuccessful efforts, demonstrated the validity of the foreign mailing address, and established that the e-mail address, taken from the WHOIS domain name registration database, was active, given that the plaintiff had corresponded with the defendant over e-mail on at least two separate occasions. See Jenkins v. Pooke, 2009 U.S. Dist. LEXIS 18975 (N.D. Cal. Feb. 17, 2009).

Beyond federal Rule 4(f), state courts have also permitted alternative service via e-mail under certain circumstances. For example, in Snyder v. Alternate Energy Inc., 19 Misc. 3d 954 (N.Y. City Civ. Ct. 2008), a lower court authorized service via e-mail upon two defendants. Among other methods, New York civil procedural law allows a court to permit alternative means of service when the plaintiff demonstrates that traditional means are unavailable. In Snyder, the defendants' whereabouts remained unknown despite exhaustive public records searches, but the plaintiff did confirm an active e-mail address that the individual defendant accessed regularly. The court concluded that the “mere fact that a defendant has a computer and an e-mail address is not a basis to allow a plaintiff to resort to e-mail service,” yet it allowed service via e-mail since the defendant was regularly online and using said address. Id. at 962.

E-mail Service Denied

Alternative service is not granted in every case. Importantly, since e-mail service is not specifically listed under Rule 4(f), it is not available without a court order. See e.g., WAWA, Inc. v. Christensen, 1999 U.S. Dist. LEXIS 11510 (E.D. Pa. July 29, 1999) (unpublished). Moreover, as the Ninth Circuit cautioned, the facts and circumstances of a particular case may not necessitate court ordered e-mail service or, in other instances, considerations of due process may negate a party's request to use electronic means to effectuate service.

For example, in Ehrenfeld v. Mahfouz, 2005 U.S. Dist. LEXIS 4741 (S.D.N.Y. Mar. 23, 2005), a district court considered the plaintiff's request for alternative service against a party who resided in Saudi Arabia, including service via e-mail. Given the plaintiff's showing that service could not be effectuated via the Hague Convention and that personal service in that forum was extremely difficult to accomplish, the court agreed that intervention under Rule 4(f) was warranted. The court permitted, among other methods, service via overnight mail to the defendant's attorneys, yet the court concluded that service via e-mail in this case did not meet the constitutional standard of due process. Id. at *8. The court stated that prior decisions allowed alternative service to e-mail addresses “undisputedly connected” to the defendants. However, the court concluded that the plaintiff in this case failed to show that the defendant maintained or monitored the business Web site in question or would be likely to receive information transmitted to the e-mail address, particularly since the e-mail address was an informational inbox for general inquiries, not an address routinely used by the defendant to conduct business. Id. at *8-9.

Before requesting judicial permission to serve a foreign defendant via alternative service, a prudent plaintiff will have performed diligent research to discover if a foreign defendant can be served via a domestic agent or by other conventional means. Merely because a foreign entity may have used e-mail as a form of communication in the past, traditional means of service do not automatically become obsolete. For example, in an action against foreign nationals from the United Arab Emirates, the district court denied the plaintiff's motion for alternative service on e-mail addresses allegedly associated with the defendants. See Nabulsi v. Nahyan, 2007 U.S. Dist. LEXIS 75077 (S.D. Tex. Oct. 9, 2007). The court initially criticized the plaintiffs for failing to outline investigative findings showing that the defendants had no alternative home or business addresses or lacked a U.S. agent authorized to accept service. Regarding e-mail service, the court stated that the plaintiffs did not present any evidence that even suggested any of the defendants regularly monitored the e-mail addresses at issue, used them as a preferred means to conduct business or receive important communications, or were likely to receive a summons and complaint for this suit transmitted to them electronically. Id. at *22.

Richard Raysman, a member of this newsletter's Board of Editors, is a partner at Holland & Knight LLP and co-author of 'Computer Law: Drafting and Negotiating Forms and Agreements' (Law Journal Press). Jonathan P. Mollod is an attorney with the firm. Copyright ' 2009 Holland & Knight LLP All Rights Reserved.

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).

Court-directed service under Rule 4(f)(3) is as favored as other methods of service, and is not “extraordinary relief”; rather, it is one of several methods to effectuate service of process on an international defendant. Rio Props., Inc. v. Rio Int ' l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). As a result, it is the trial court's task to determine when the particularities and necessities of a given case warrant alternate service. Studio A Entm't, Inc. v. Active Distribs., Inc., 2008 WL 162785 at *3 (N.D. Ohio Jan. 15, 2008). Nonetheless, the court may require the plaintiff to show that reasonable efforts to serve the defendant have already been attempted, and that court intervention will avoid subsequent futile attempts. Ryan v. Brunswick Corp., 2002 WL 1628933, at *2 (W.D.N.Y. May 31, 2002). Regardless of what method of process the court orders, that method must comply with constitutional notions of due process; that is, the method of service must be reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Rio Props., 284 F.3d at 1016-17.

Applying Rule 4(f)(3), courts have authorized various alternative methods of service in the past, including, among others, service by publication, delivery to the defendant's attorney, and, increasingly over the last several years, via e-mail. 1st Technology, LLC v. Digital Gaming Solutions S.A., 2008 U.S. Dist. LEXIS 88341 at *22 (E.D. Mo. Oct. 31, 2008). Indeed, with the growth of e-commerce, businesses increasingly reside in cyberspace, and e-mail may be the only means of effecting service of process. Rio Props., 284 F.3d at 1018; see also Williams-Sonoma Inc. v. Friendfinder Inc., 2007 U.S. Dist. LEXIS 31299 (N.D. Cal. Apr. 17, 2007) (authorizing service of process by e-mail on foreign Web site owners).

Alternative Service via E-mail Permitted

The Ninth Circuit was the first appeals court to recognize the propriety of service via e-mail under Rule 4(f)(3) when it affirmed a district court's choice of e-mail as one of several means used to serve a foreign company. Rio Props., Inc. v. Rio Int ' l Interlink, 284 F.2d 1007 (9th Cir. 2002). The appeals court concluded that e-mail service was appropriate because, after diligent investigation by the plaintiff, e-mail was the only reliable method for contacting the foreign defendant, given the failed attempts to serve the defendant at a foreign mailing address and at the address listed on defendant's domain name registration. Since the foreign defendant did not appear to use a physical address for communicating with its clients, but, instead, maintained a Web site, the court concluded that service via e-mail was reasonably calculated to provide the defendant notice of the suit. However, the Ninth Circuit expressly cautioned lower courts to “balance the limitations of e-mail service against its benefits in any particular case.” Id. at 1018.

Subsequently, in Williams v. Advertising Sex LLC , 231 F.R.D. 483 (N.D. W.V. 2005), the plaintiff sued multiple entities that allegedly conspired to defame her through the online circulation of a graphic video. After documenting that prior attempts only caused the defendants to erect barriers to formal service, the plaintiff moved to serve the defendants via e-mail and international registered and standard mail. In granting the motion, the court found that the defendants were “sophisticated participants in e-commerce” and that the plaintiff had demonstrated reliable e-mail addresses linked to established Web sites. Id. at 487. See also Bank Julius Baer & Co. Ltd v. Wikileaks, 2008 WL 413737 (N.D. Cal. Feb. 13, 2008) (service by e-mail permitted given that physical addresses of Web site business could not be effectively located and purported agents refused to accept service).

Federal courts have traditionally incorporated advances in technology to alternative methods of service for foreign defendants and in at least one case, a court has rebuffed arguments regarding the theoretical unreliability of e-mail service. For example, in Philip Morris USA Inc. v. Veles Ltd., 2007 WL 725412 (S.D.N.Y. Mar. 12, 2007), the defendants, having been served via e-mail as per court order, subsequently moved to dismiss for ineffective service. The court rejected the defendants' objections about the questionable dependability of e-mail service, particularly since the plaintiffs amply demonstrated the high likelihood that defendants would receive and respond to e-mail and defendants did not dispute actually receiving the e-mailed complaint.

Most recently, a California district court authorized alternative service upon an alleged foreign cybersquatter via e-mail and international mail where the plaintiff had documented prior unsuccessful efforts, demonstrated the validity of the foreign mailing address, and established that the e-mail address, taken from the WHOIS domain name registration database, was active, given that the plaintiff had corresponded with the defendant over e-mail on at least two separate occasions. See Jenkins v. Pooke, 2009 U.S. Dist. LEXIS 18975 (N.D. Cal. Feb. 17, 2009).

Beyond federal Rule 4(f), state courts have also permitted alternative service via e-mail under certain circumstances. For example, in Snyder v. Alternate Energy Inc., 19 Misc. 3d 954 (N.Y. City Civ. Ct. 2008), a lower court authorized service via e-mail upon two defendants. Among other methods, New York civil procedural law allows a court to permit alternative means of service when the plaintiff demonstrates that traditional means are unavailable. In Snyder, the defendants' whereabouts remained unknown despite exhaustive public records searches, but the plaintiff did confirm an active e-mail address that the individual defendant accessed regularly. The court concluded that the “mere fact that a defendant has a computer and an e-mail address is not a basis to allow a plaintiff to resort to e-mail service,” yet it allowed service via e-mail since the defendant was regularly online and using said address. Id. at 962.

E-mail Service Denied

Alternative service is not granted in every case. Importantly, since e-mail service is not specifically listed under Rule 4(f), it is not available without a court order. See e.g., WAWA, Inc. v. Christensen, 1999 U.S. Dist. LEXIS 11510 (E.D. Pa. July 29, 1999) (unpublished). Moreover, as the Ninth Circuit cautioned, the facts and circumstances of a particular case may not necessitate court ordered e-mail service or, in other instances, considerations of due process may negate a party's request to use electronic means to effectuate service.

For example, in Ehrenfeld v. Mahfouz, 2005 U.S. Dist. LEXIS 4741 (S.D.N.Y. Mar. 23, 2005), a district court considered the plaintiff's request for alternative service against a party who resided in Saudi Arabia, including service via e-mail. Given the plaintiff's showing that service could not be effectuated via the Hague Convention and that personal service in that forum was extremely difficult to accomplish, the court agreed that intervention under Rule 4(f) was warranted. The court permitted, among other methods, service via overnight mail to the defendant's attorneys, yet the court concluded that service via e-mail in this case did not meet the constitutional standard of due process. Id. at *8. The court stated that prior decisions allowed alternative service to e-mail addresses “undisputedly connected” to the defendants. However, the court concluded that the plaintiff in this case failed to show that the defendant maintained or monitored the business Web site in question or would be likely to receive information transmitted to the e-mail address, particularly since the e-mail address was an informational inbox for general inquiries, not an address routinely used by the defendant to conduct business. Id. at *8-9.

Before requesting judicial permission to serve a foreign defendant via alternative service, a prudent plaintiff will have performed diligent research to discover if a foreign defendant can be served via a domestic agent or by other conventional means. Merely because a foreign entity may have used e-mail as a form of communication in the past, traditional means of service do not automatically become obsolete. For example, in an action against foreign nationals from the United Arab Emirates, the district court denied the plaintiff's motion for alternative service on e-mail addresses allegedly associated with the defendants. See Nabulsi v. Nahyan, 2007 U.S. Dist. LEXIS 75077 (S.D. Tex. Oct. 9, 2007). The court initially criticized the plaintiffs for failing to outline investigative findings showing that the defendants had no alternative home or business addresses or lacked a U.S. agent authorized to accept service. Regarding e-mail service, the court stated that the plaintiffs did not present any evidence that even suggested any of the defendants regularly monitored the e-mail addresses at issue, used them as a preferred means to conduct business or receive important communications, or were likely to receive a summons and complaint for this suit transmitted to them electronically. Id. at *22.

Richard Raysman, a member of this newsletter's Board of Editors, is a partner at Holland & Knight LLP and co-author of 'Computer Law: Drafting and Negotiating Forms and Agreements' (Law Journal Press). Jonathan P. Mollod is an attorney with the firm. Copyright ' 2009 Holland & Knight LLP All Rights Reserved.