Lexmark International, Inc., v. Ink Technologies Printer Supplies, LLC, No. 1:10-cv-564 (S.D. Ohio Dec. 2, 2013) [click for opinion]

Lexmark International, Inc. filed a motion for permission under Federal Rule of Civil Procedure 4(f)(3) to serve process on Zhuhai Aicon Image Co., an entity located in China, and Ero Service Sp. z.o.o., an entity located in Poland, by email.  As Defendants had not made an appearance in the lawsuit, no response to the motion was filed.

Federal Rule of Civil Procedure 4(f)(3) provides that service may be effectuated by “other means not prohibited by international agreement, as the court orders.”  The court noted that “Rule 4(f)(3) is neither a last resort nor extraordinary relief.  It is merely one means among several which enables service of process on an international defendant.” 

The preliminary question was whether service by email was "prohibited by international agreement."  Both China and Poland are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, and both have objected to Article 10 of the Hague Convention, which permits service by postal channels.  The court concluded, consistent with other courts, that an objection to Article 10 does not constitute an objection to service by email.  As such, the court found that service by email was "not prohibited by international agreement."

The court then analyzed whether service by email would comport with due process.  To satisfy this standard, the means of service must be reasonably calculated to apprise the interested parties of the action and to afford them an opportunity to present their objections.  Whether the facts and circumstances warrant alternative service under Rule 4(f)(3) is a decision committed to the sound discretion of the court.

The court found that service by email would be appropriate.  Plaintiff had demonstrated that each defendant was a business entity that operated valid websites; on these websites each defendant maintained at least one email address by which it could be contacted.  Plaintiff had verified that each email address at which it sought permission to effect service was valid, and Plaintiff had communicated with a representative of each defendant at those email addresses.  Additionally, Plaintiff was able to demonstrate that service could be significantly delayed if formal service pursuant to the Hague Convention were required, as Plaintiff had had difficulty locating the defendants, while other potential defendants in the case had evaded enforcement efforts by effectively disappearing.