The Lawletter Vol 42 No 7
Rule 4(f) of the Federal Rules of Civil Procedure establishes three mechanisms for serving an individual in a foreign country. First, service may be had "by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention." Fed. R. Civ. P. 4(f)(1). The Hague Convention is the standard method for serving an individual in a foreign country, but it does not preempt all other methods of service on individuals in another signatory nation. See 4B Charles A. Wright et al., Federal Practice and Procedure § 1134 (4th ed. & Westlaw updated through Apr. 2017). Rather, all three methods of service under Rule 4(f) are "on equal footing," and a plaintiff need not attempt service by any one method before resorting to another. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002). Second, if there is no internationally agreed means, or if an international agreement allows but does not specify other means, then service may be had "by a method that is reasonably calculated to give notice," including service "as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction," or by delivering a copy of the summons and complaint to the individual personally, unless that method is prohibited by the foreign country's law. Fed. R. Civ. P. 4(f)(2)(A), (C). Third, an individual may be served in a foreign country "by other means not prohibited by international agreement, as the court orders." Id. R. 4(f)(3).
Courts have generally applied Rule 4(f)(3) to authorize any means of service as long as it comports with due process and (1) "provides 'notice reasonably calculated, under all [the] circumstances[,] to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,'" and (2) is not prohibited by international agreement. St. Francis Assisi v. Kuwait Fin. House, No. 3:16-CV-3240-LB, 2016 WL 5725002, at *1 (N.D. Cal. Sept. 30, 2016) (quoting Rio Props., 284 F.3d at 1016 (in turn quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950))). Under Rule 4(f)(3), federal district courts have authorized a wide variety of methods for serving process in a foreign country, including "publication, ordinary mail, mail to the defendant's last known address, delivery to the defendant's attorney, telex, and most recently, email." Rio Props., 284 F.3d at 1016 (collecting cases). Since the Rio Properties case was decided in 2002, district courts have also begun authorizing service through social media, including Facebook and LinkedIn. See, e.g., WhosHere, Inc. v. Orun, No. 1:13-CV-00526-AJT, 2014 WL 670817 (E.D. Va. Feb. 20, 2014) (authorizing service on individual in Turkey by email and through Facebook and LinkedIn); FTC v. PCCare247 Inc., No. 12 CIV. 7189 (PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013) (authorizing service on individuals in India by email and through Facebook).
The district court extended the reasoning of those cases in St. Francis Assisi, in which the court authorized the plaintiff to serve an individual in Kuwait via Twitter. Kuwait is not a signatory to the Hague Convention and attempts to serve the individual through Kuwait's Central Authority were unsuccessful anyway. Thus, Kuwait did not prohibit, by international agreement, service through Twitter, where the individual had a large following and had raised large sums of money for terrorist organizations. Under those circumstances, the court concluded that because the individual "has an active Twitter account and continues to use it to communicate with his audience," service on the individual through Twitter was "reasonably calculated to give notice to and is the 'method of service most likely to reach'" the individual. 2016 WL 5725002, at *2 (quoting Rio Props., 284 F.3d at 1017).
Given the limitations of Twitter, including its 140-character limit on Tweets and lack of user authentication, it is questionable whether service by publicly posting on Twitter really satisfies the Mullane due-process standard. As such, it will be interesting going forward to see if other courts approve Twitter as an acceptable means of serving process on an individual in a foreign country.