Service Through E-mail and US-Based Counsel Permitted Against Foreign Defendant: W.D.N.C. | Practical Law

Service Through E-mail and US-Based Counsel Permitted Against Foreign Defendant: W.D.N.C. | Practical Law

In Title Trading Services USA, Inc. v. Kundu, the US District Court for the Western District of North Carolina held that service of process by e-mail on a defendant in India was permissible under the terms of the Hague Convention and comported with constitutional due process requirements.

Service Through E-mail and US-Based Counsel Permitted Against Foreign Defendant: W.D.N.C.

by Practical Law Litigation
Published on 19 Aug 2014 • USA (National/Federal)
In Title Trading Services USA, Inc. v. Kundu, the US District Court for the Western District of North Carolina held that service of process by e-mail on a defendant in India was permissible under the terms of the Hague Convention and comported with constitutional due process requirements.
On August 15, 2014, in Title Trading Services USA, Inc. v. Kundu, the US District Court for the Western District of North Carolina held that service of process by e-mail on a defendant in India was permissible under the terms of the Hague Convention and comported with constitutional due process requirements (No. 14-cv-225, (W.D.N.C. Aug. 15, 2014)). The court also allowed the plaintiff to attempt service of process through the defendant's US-based counsel.

Background

Plaintiff Title Trading Services USA, Inc. (Title Trading) filed suit against multiple defendants, alleging misappropriation of its intellectual property. After unsuccessful attempts to serve one of the defendants, who relocated to India, Title Trading moved to serve him through alternative means, namely, by e-mail or service upon the defendant's counsel.

Outcome

The district court granted Title Trading's motion. First, the district court noted that service of process on a foreign individual must comply with constitutional due process requirements and FRCP 4(f), which allows for any means of service that:
  • Is not prohibited by international agreement.
  • Provides reasonable assurance that the defendant will be provided notice of the lawsuit.
The court then determined that Title Trading's proposed method of service through e-mail was not prohibited by the Hague Convention. It reasoned that Article 10 of the Convention permits "alternative means" of service, and India has not specifically objected to e-mail as a form of service. Based on documents provided by the plaintiff showing that the defendant actively used a specific e-mail address, the district court also concluded that service via e-mail was likely to provide the defendant with notice of the litigation. Finally, the district court noted that the plaintiff had sought to effect service through various means in the United States but had been unable to do so, and that service via conventional means in India was unlikely to occur. It therefore granted the plaintiff's motion to serve the defendant by e-mail or by serving the defendant's US-based counsel.

Practical Implications

Courts increasingly are permitting service by e-mail. Counsel should remember that federal courts have broad discretion to allow alternative means of service, as long as these means do not violate any international agreement and are reasonably calculated to provide the defendant with notice of the litigation.
For more on international service of process, see International Litigation: US Laws Governing Cross-border Service of Process.