Serving Foreign Parties by Serving Their
By Lawrence W. Newman and David Zaslowsky
New York Law Journal
July 25, 2013
Lawrence W. Newman
Suppose you are suing a Chinese corporation and seek to effect service of process by means of the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial
Matters (the convention). Suppose further that China refuses to make service on the ground that the
requested service infringes on its sovereignty. What are you to do? A recent decision held that, under such
circumstances, one may serve the defendant's lawyer in the United States. Indeed, it is not unusual under
a variety of circumstances for a court to authorize service on a foreign party through service on its U.S.
Service on a foreign corporation is governed by Fed. R. Civ. P. 4(h), which states that a foreign
corporation must be served "in a judicial district of the United States…or at a place not within any judicial
district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except
personal delivery…." Rule 4(f)(1) permits service outside the United States "by any internationally agreed
means of service that is reasonably calculated to give notice, such as those authorized by the Hague
Subject to enumerated restrictions, Rule 4(f)(2) permits alternative service "if there is no internationally
agreed means, or if an international agreement allows but does not specify other means, by a method that
is reasonably calculated to give notice." Finally, Rule 4(f)(3) provides that service on a foreign litigant can
be effected "by other means not prohibited by international agreement, as the court orders." In order for
service to be valid, even when ordered pursuant to Rule 4(f)(3), the U.S. Supreme Court has stated that
service must provide "notice reasonably calculated, under all the circumstances, to appraise[sic]
interested parties of the pendency of the action and afford them an opportunity to present their
objections." Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314 (1950).
In the recent case regarding service on a Chinese defendant, the plaintiffs alleged that defendants China
and Baidu, a Chinese corporation providing Internet search engine services, conspired to prevent their
"pro-democracy political speech" from appearing in Baidu's search engine results. Jian Zhang v.
Baidu.com, 11 Civ. 3388, NYLJ 1202603927080, at *1 (SDNY June 7, 2013). The plaintiffs originally tried
to serve China and Baidu using the primary mechanism provided under the convention, through the
central authority designated by the foreign country (the Chinese Ministry of Justice in the case of China).
However, under Article 13 of the convention, service may be refused if the foreign country "deems that
compliance would infringe its sovereignty or security." China made such a refusal in this case.
The plaintiffs responded by requesting permission from the court to effect alternative service under Rule
4(f)(3). Baidu objected to the request on the basis that an order of alternative service would have the effect
of overriding China's invocation of its sovereignty and security under Article 13. Baidu also said that
Article 13 would be a "dead letter" if a U.S. court could simply circumvent a signatory's invocation of its
sovereignty or security by ordering workaround service.
The court in the Southern District of New York disagreed, explaining that authorizing service within the
United States pursuant to Rule 4(f)(3) in a manner that does not call upon China to effect service does not
override its invocation of its sovereignty and security. The court referred to the oft-quoted Supreme Court
statement on the subject: "The only transmittal to which the Convention applies is a transmittal abroad
that is required as a necessary part of service." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.
694, 707 (1988) (emphasis added). The convention therefore has "no further implications [w]here service
on a domestic agent is valid and complete under both state law and the Due Process Clause." Id.
Having determined to authorize alternative service, the court turned to a determination of the form of
service to be used. The court chose service on New York counsel for the defendant, stating that the other
three options (publication in China, email or fax) involved transmission of documents abroad and would
therefore implicate the convention.
The court in Baidu observed that serving counsel in the United States "is a common form of service
ordered under Rule 4(f)(3)," and, indeed, that seems to be the case. In Tracfone Wireless v. AU
Optronics, No. C 10-3205 SI (N.D. Cal. Nov. 2, 2010), for example, the defendant was incorporated in
Taiwan, which is not a party to the convention. Plaintiff asked the court for permission to effect service
through defendant's U.S. counsel that had been representing the defendant in other cases in the multidistrict
litigation (MDL). The defendant contended that plaintiff was required to first attempt to
personally serve the defendant through letters rogatory served at its Taiwan address.
The court noted that, earlier in the same MDL, when another plaintiff spent many months attempting to
effect service on Taiwanese defendants through the letter rogatory process, it proved time-consuming,
expensive, and burdensome. The court also explained that there is no requirement that a party attempt
service of process by methods enumerated in Rule 4(f)(2), including diplomatic channels and letters
rogatory, prior to petitioning the court for alternative relief under Rule 4(f)(3). Because of the need to
coordinate discovery in this case and in the MDL, the court authorized service on the defendant's U.S.
In United States CFTC v. Aliaga, 272 F.R.D. 617 (S.D. Fla. Feb. 28, 2011), the plaintiff had diligently
attempted to perfect service on the defendants or obtain a waiver of service from them or their local
counsel, but had not been successful. Noting that the lawyer whom the plaintiff had sought to serve with
process was the one who had moved to dismiss the complaint, the court found that service upon the
defendants via email and through service on their local counsel was reasonably calculated to apprise
defendants of the pendency of this action. Thus, the court authorized such service under Rule 4(f)(3). This
is a potentially troubling precedent. By exercising its right to have an improperly brought case dismissed,
should a party thereby be considered to have consented to appointing his lawyer to receive process? Is this
creating a method for trapping foreign defendants?
APPROACHES AND APPLICATIONS
Although in the cases referred to above there were initially fruitless attempts to serve in some way other
than under Rule 4(f)(3), not all courts have required such efforts. In Fru Veg Marketing, v.
Vegfruitworld, No. 1:12-cv-21262 (S.D. Fl. Sept. 20, 2012), the Florida district court authorized service
under Rule 4(f)(3) by international courier and via email and U.S. mail to counsel, who was located in the
Southern District of Florida. The court's justification was little more than saying that it was a way to
prevent delays in litigation. On the other hand, there are courts that have specifically held that Rule
4(f)(3) service should not be permitted unless a party can show "that they have reasonably attempted to
effectuate service" without success. Madu Edozie & Madu v. SocketWorks Nig., 265 F.R.D 106, 115
Do lawyers need to be concerned about Rule 4(f)(3) being used to force them to accept service on former
clients? Probably not. In 1st Tech v. Disigital Gaming Solutions, 2009 U.S. Dist. Lexis 27786 (E.D. Mo.
March 30, 2009), the Missouri court refused to authorize service on a lawyer whose representation had
ended four months earlier. Likewise, a request was denied where the case in which the lawyer had acted
for the foreign party had ended six months earlier. In re Heckman Corp. Sec. Litig., 2011 U.S. Dist. Lexis
134402 (D. Del. 2011).
Perhaps the most liberal application of service on counsel is a 2010 state court decision in New York,
Invar International v. Zorlu, No. 650628/2010 (Sup. Ct. N.Y. County July 22, 2010). That case involved
foreign parties to a transaction regarding a construction project in Russia. When a dispute arose, it was
submitted to arbitration in Switzerland. One of the parties, Zorlu, was represented in the arbitration by
White & Case's Washington, D.C., office. Respondents brought a petition against Zorlu in New York state
court for a preliminary injunction in aid of the arbitration. The issue before the court was whether service
of process in the state court proceeding could be effectuated through service on White & Case.
Zorlu argued that service of the order to show cause upon White & Case violated the mandatory provisions
of the Hague Convention. The court rejected the argument, noting that the Supreme Court had made it
clear that the convention does not apply where the service on a domestic agent is valid and complete
under both state law and the Due Process Clause. Therefore, the court's inquiry focused on whether the
service on White & Case in D.C. was in accordance with New York law.
The court referred to N.Y. CPLR 311(b), which provides that, if service upon a foreign corporation within
the 120 days allowed by CPLR 306(b) or any other law "is impracticable, …service upon the corporation
may be made in such manner…as the court directs." The court found support in Professor David Siegel's
characterization that CPLR 311(b) "allow[s] the court to invent a method upon a showing that the plaintiff
can't make timely service on the corporation by the prescribed methods." David D. Siegel, New York
Practice 112 (4th ed. 2005).
The court found that service upon Zorlu abroad under the Hague Convention could not have been
accomplished prior to the date the petition alleged that the service period expired. Thus, there was an
adequate showing of impracticability. The court further found that the constitutional requirements of
notice were satisfied by service on White & Case in D.C. since White & Case was representing Zorlu in the
Swiss arbitration and was therefore obviously in contact with Zorlu about the matter to which the petition
As a practical matter, there are probably many countries in which service under the Hague Convention
will take more than 120 days. Thus, meeting the threshold requirement regarding CPLR 311(b) is probably
often not a significant obstacle. Of course, the wise practitioner will be thinking many steps beyond
service of process, focusing ultimately on the extent to which she will have a judgment that will be
enforceable. In situations in which service of process on defendant's lawyer in the United States does not
comply with the law of the country in which it will be necessary to enforce the U.S. judgment, an order
under Rule 4(f)(3) or CPLR 311(b) could have limited value, depending on where the defendant's assets
What emerges from the cases is that courts do not seem to want service of process issues to be an obstacle
to the pursuit of a case on the merits. The Supreme Court's Schlunk decision laid the foundation for
arguments that focused on accomplishing service in the United States on foreign defendants. Rule 4(f)(3),
as the U.S. Court of Appeals for the Ninth Circuit has stated, is "neither a last resort nor extraordinary
relief…. It is merely one means among several which enables service of process on an international
defendant." Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). Equally significant, in
that case, the Ninth Circuit held that "[a]s long as court-directed and not prohibited by an international
agreement, service of process ordered under Rule 4(f)(3) may be accomplished in contravention of the
laws of the foreign country." Id. at 1014 (emphasis added).
Some of the rulings in Rule 4(f)(3) cases seem fact dependent. More generally, though, many practitioners
may be surprised to learn that the threshold for the use of Rule 4(f)(3), including as to how it relates to
service on lawyers, is not so hard to cross as they may have believed.
Lawrence W. Newman is of counsel and David Zaslowsky is a partner in the New York office of Baker &
McKenzie. They are the authors of "Litigating International Commercial Disputes" (West). They can be
reached at, respectively, email@example.com and
firstname.lastname@example.org. Robyn Lym, a summer associate, assisted in the preparation of
This article originally appeared in the print edition under the headline “Serving Process on Foreign
Parties by Serving Their U.S. Lawyers.”