A recent case from the U.S. District Court for the Northern District of West Virginia addresses the novel question of when a plaintiff can obtain service of process over a defendant in another country by e-mail.

Plaintiff Williams sued numerous defendants whom she alleged conspired to defame her. Three of the defendants were residents of Australia, and Williams’s efforts of obtaining service by traditional means were unsuccessful. She petitioned the court to allow her to obtain service by alternate means, including e-mail, pursuant to Fed. R. Civ. P. 4(f)(3). Because Williams had demonstrated her good faith efforts to serve the Australian defendants by traditional means, and because her proposed efforts of service through e-mail were reasonable, the court granted the motion.

The court went through a two-step process to determine that service of process by e-mail would be proper. First, it concluded that given the “particularities and necessities” presented from the near impossibility of serving the evasive defendants, alternate means of service were warranted. The court then “examined the contours” of Rule 4(f)(3) to determine which alternate means would satisfy due process concerns.

Rule 4(f)(3) provides three general means for effecting service of process on defendants outside the United States. Paraphrased, these means are:

  • Any internationally agreed means, such as the Hague Convention
  • Any manner authorized by the laws of the foreign country
  • Any means not prohibited by international agreement and directed by the court

Adopting the standard first applied in the Ninth Circuit decision of Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), the court held that “Rule 4(f) does not denote any hierarchy or preference of one method of service over another.” Because Australia and the U.S. have no agreement between them regarding service of process, the court was free to consider any means for service reasonably calculated to alert the defendants of the action.

Given that the defendants were “sophisticated participants in e-commerce,” and that plaintiff had established the reliability of e-mail addresses used by the defendants, alternate service by e-mail was permissible. The reliability of service by e-mail was enhanced by Williams’s proposal to use an online service that provided encryption and digital confirmation of delivery.

Williams v. Advertising Sex LLC et al., — F.R.D. —, 2005 WL 2837574 (October 25, 2005).