Serving a defendant that is located outside the United States must comply with U.S. law and the law of the defendant’s home country, as well as any international agreement that may exist between the United States and the defendant’s home country, to ensure the service will be enforceable. From a practical standpoint, this means international service of process is time-consuming and expensive in most cases.
Consequently, service of process by mail to a foreign defendant, and to Taiwanese defendants in particular, has become increasingly common as a more uniform and manageable method for delivering notice to entities overseas. There have been questions of whether service by mail to a Taiwanese defendant is permissible under Federal Rules of Civil Procedure (FRCP) Rule 4(f)(2)(c)(ii), which provides that an individual in a foreign country may be served, unless prohibited by the foreign country’s law, by “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Recent court decisions have solidified that service of process by mail to a defendant located in Taiwan, and other foreign entities, can be a proper method of service.
While the gold standard for service of process to defendants located in Taiwan has been to serve via letters rogatory – which requires the translation of a complaint into Mandarin and that the party serving the suit papers secure permission from both the U.S. and Taiwanese courts – recent court decisions have allowed for a less expensive and less time-consuming process. The majority of U.S. courts dealing with the question of whether service by mail to a defendant in Taiwan is proper have decided that it is a permissible method for service, unless it is expressly prohibited by Taiwan’s (the foreign country’s) laws or pursuant to any international agreement.
In one case dealing with service of process by mail through FedEx, the court held that since Taiwanese law does not contain an explicit textual prohibition on service by FedEx, service by mail was permitted. SignalQuest, Inc. v. Tien-Ming Chou & Oncque Corp., No. 11-cv-392, 2012 U.S. Dist. LEXIS 70998 at 13 (D.N.H. May 22, 2012).
In another case, the court held that because the United States and Taiwan have not signed any treaties or agreements regarding service of process from U.S. courts, and no international agreements expressly prohibited service of process by mail, then service of process by mail was proper. Tatung Co. v. Shu Tze Hsu, No. SA CV 13-1743, 2015 U.S. Dist. LEXIS 179201 at 8 (C.D. Cal. May 18, 2015).
Another court held that service of process by mail or email to a defendant in Taiwan was permissible, reasoning that there were no prohibitions for these methods of service by any international agreements between the two countries. Ryan v. Brunswick Corp., No. 02-cv-0133E(F), 2002 U.S. Dist. 13837 at 6 (W.D.N.Y. May 31, 2002).
U.S. Supreme Court Ruling
While Taiwan is not a signatory to the Hague Service Convention, the U.S. Supreme Court’s ruling in Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508 (2017), means that for those countries that are signatories, service of process by mail is also permissible. The Hague Service Convention is a treaty that allows for service of process of legal documents from one member country to another member country without the use of consular or diplomatic channels. Its purpose is to create a uniform method for delivering notice of a foreign lawsuit to entities overseas.
In the Water Splash case, the Court was ruling on whether the word “send” could be interpreted to include service by mail, as found in Article 10(a) of the Hague Service Convention, which states in pertinent part: “Provided the state of designation does not object, the present Convention does not interfere with … the freedom to send judicial documents by postal channels directly to that person abroad.” The Court held that Article 10(a) encompasses service by mail, and for entities governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail, and second, service by mail is authorized under otherwise applicable law. Water Splash, Inc. 137 S. Ct. at 1513.
Generally, so long as a country does not expressly prohibit service by mail, it is safe to say service of process via that method will be proper and enforceable if all other rules of service are followed. We will continue to closely follow any decisions regarding the permissibility of service of process by mail to foreign entities, and we will report back to our readers with any updates.
Written by Olivia Goldner (Summer Law Clerk-Chicago) in collaboration with Curt Schlom.