Joseph v. Springer Nature

Background

Plaintiff Rhawn Joseph asked the Clerk to enter defaults against defendants Elias Brinks and Jeremy Mould under Federal Rule of Civil Procedure 55(b)(2). A default is a procedural entry made when a defendant does not timely respond after being properly served. The Clerk’s Office asked the court to decide whether the requested defaults could be entered.

The opinion states that Brinks lives in the United Kingdom and Mould lives in Australia. Joseph submitted affidavits stating that he served both defendants by email. He also relied on documents showing that he sent the summons and complaint to each defendant in a DHL envelope with tracking information, asserting that this was certified or registered mail sent to the defendants’ workplaces.

Email service

Because Brinks and Mould live in foreign countries, Rule 4(f) governed service. Rule 4(f)(1) permits service through internationally agreed methods, including methods authorized by the Hague Service Convention. The court explained that the United Kingdom and Australia are parties to that Convention and that compliance with it is mandatory when it applies.

The court rejected Joseph’s argument that the Convention permits service by email through its provision concerning postal channels. Relying on the text of the Convention and prior decisions, the court held that email is not a permitted method of service under the Convention. Rule 4(f)(2) did not authorize email because an international agreement existed, but the Convention did not allow email without specifying how to use it. Rule 4(f)(3) also did not apply because the court had not issued an order authorizing email service.

Service by mail

The court assumed, without deciding, that using a private courier such as DHL could qualify as service by mail. It also assumed, without deciding, that neither Australia nor the United Kingdom had objected to service by mail under the Hague Convention. The court nevertheless concluded that Joseph had not shown that the mail service was authorized under Rule 4(f).

Rule 4(f)(1) did not itself authorize service by mail because it concerns internationally agreed methods, and the Convention’s treatment of mail did not affirmatively authorize it. Rule 4(f)(2)(B) and Rule 4(f)(2)(C) did not apply because Joseph had not used a letter rogatory or letter of request, and had not used the Clerk of Court to send the mailings. The court also noted that service by the Clerk would require a competent showing that the foreign countries did not prohibit service by mail.

Under Rule 4(f)(2)(A), Joseph needed to show that the method was prescribed by the law of the foreign country for service in that country’s courts of general jurisdiction. The court found that his filings did not meet that burden. He cited an unclear excerpt of United Kingdom law concerning email service, not overnight mail to a defendant’s workplace. He did not provide expert affidavits or authenticated legal materials showing that the challenged mail service was permitted under the relevant Australian and United Kingdom laws.

Rule 4(f)(3) also did not authorize the mail service because no court order had authorized mail as a method of service.

Ruling

Judge Gabriel W. Gorenstein denied Joseph’s applications for certificates of default. The opinion decided whether Joseph had shown proper service for purposes of entering default; it did not decide the underlying claims against the defendants.