In its March 25, 2013 opinion in Zheng v. Baidu.com, Inc., the US District Court for the Southern District of New York held that proper service of a complaint on a defendant did not exist when a signatory to the Hague Service Convention (Hague Convention) declined to effect service on both that nation and a private party located within its jurisdiction. The plaintiffs, advocates for democracy within the People's Republic of China, alleged that Baidu.com, China's largest search engine, conspired with the Chinese government to prevent the plaintiff's pro-democracy speech from appearing on Baidu's search engine.

Although the plaintiffs followed the correct procedure for serving the defendants as outlined in the Hague Convention, the central judicial authority of China charged with accepting service refused to effect service of the complaint. Under Article 13 of the Hague Convention, a nation may properly decline to effect service if it would infringe on its on the nation's sovereignty or security.

The plaintiffs then attempted to serve the defendants by Federal Express, but only Baidu accepted delivery of the package. The plaintiffs later moved the court for default judgment. Although China did not appear in this action as a defendant, Baidu made a special appearance to oppose the motion for default judgment and sought dismissal of the complaint under FRCP 12(b)(5) for insufficient service of process. The plaintiffs' arguments in support of their motion for default judgment were that China's:

The court refused to endorse either of the plaintiffs' arguments. It first explained that US courts lack jurisdiction to decide the validity of invocations of Article 13, because those decisions are made through diplomatic channels. The court nevertheless stated that Article 13 allows the state to decline to effect service under the Convention, regardless of whether the defendant is the sovereign or a private party. Therefore, China could decline to effect service on both itself and Baidu. In addressing the plaintiff's second argument, the court held that Baidu's actual notice of the suit was irrelevant to the issue of proper service. Because China had properly invoked its rights under Article 13, allowing service in a manner not proscribed by the Hague Convention would effectively undermine the Hague Convention.

The court therefore denied the plaintiffs' motion for default judgment and granted the defendant's motion to dismiss. However, since the plaintiffs argued that they should be allowed to file a motion for alternative service under FRCP 4(f)(3), the court stayed dismissal for 30 days to give the plaintiffs time to file the motion.

Practitioners serving foreign parties should not assume that service made in accordance with the Hague Convention is proper service. A state may assert that service would infringe on its sovereignty or security and refuse to effect service, even when the party is not the sovereign.

For more information about serving a party abroad through the Hague Convention, see Practice Note, International Litigation: Serving Process outside the US.