March 27, 2013
On Monday, the Southern District of New York dismissed a suit brought by pro-democracy advocates against the People’s Republic of China and Chinese search engine service Baidu.com. Zhang v. Baidu.com Inc., 2013 WL 1195257. The complaint alleged civil rights violations under federal and New York law for conspiring to suppress the plaintiffs’ political speech. The reason for the dismissal? Neither China nor Baidu were properly served.
The case provides a nice illustration of the difficulty of attempting to hail foreign defendants into court in the United States. The plaintiffs attempted to effect service through the Chinese Ministry of Justice, which is the designated Central Authority for China under the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents. (For the Hague Convention text, see 20 U.S.T. 361.) The Chinese Ministry of Justice returned the request for service, stating that “execution of the request would infringe the sovereignty of the People’s Republic of China” and citing Article 13 of the Hague Convention. The plaintiffs then tried to serve the summons and complaint via FedEx, which was refused by the Chinese Ministry of Justice but successfully delivered to one Baidu office where an employee signed for it.
The crux of the decision is that the court lacks jurisdiction to address the question of whether China properly invoked Article 13 of the Hague Convention, because disputes under the Convention must be settled through diplomatic channels. The court is very dismissive of the plaintiffs attempts to sidestep this requirement—whether the defendants had actual notice of the suit has no bearing because they properly objected to service under the Hague Convention, and the Convention conditions for default judgment were not met. The court does leave open the question of whether alternative service, such as service upon counsel, might be available as to Baidu under FRCP 4(f)(3).
To find further discussion of international service of process, I ran the following plain language search:
“hague convention” “service of process”
The U.S. Supreme Court addressed service under the Convention in Volkswagenwerk Aktiengesellschaft v. Schlunk, 108 S.Ct. 2104 (1988). One key concept is that the Hague Convention does not itself describe standard for determining legal sufficiency of delivery of service of process; on these questions, internal law of forum state controls.
You can find some excellent discussion in Federal Practice and Procedure. FPP § 1133 generally outlines service on individuals abroad, and subsequent sections address manner of service (FPP § 1134), who may serve process in the foreign country (FPP § 1135), and proof of service (FPP § 1136).