In Smart Study Co., LTD v. Shenzhenshixindajixieyouxiangongsi, No. 24-313 (2d Cir. Dec. 18, 2025), the Second Circuit holds in a matter of first impression that e-mail service on a foreign defendant violates the Hague Service Convention and cannot be supported by Fed. R. Civ. P. 4(f).
The Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (the “Hague Service Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638, which was ratified by the USA and China (among some 85 countries), allows nations to set up a central authority as an agent of service for domestic companies. But plaintiffs may also affect service in other ways, such as through “diplomatic or consular agents” or other means if the nation “does not object.”
Fed. R. Civ. P. 4(f) adopts the Hague Convention as the standard for foreign service, while providing alternative service methods in nations that are not party to the convention.
Plaintiff Smart Study is the South Korean international entertainment company that owns the “Baby Shark” song and spin-offs. “On July 6, 2021, Smart Study filed a sealed complaint in the Southern District of New York against fifty-eight China-based companies, alleging that the companies had ‘manufactured, imported, exported, advertised, marketed, promoted, distributed, displayed, offered for sale and/or sold’ counterfeit Baby Shark products in violation of federal trademark, copyright, and unfair-competition laws, as well as New York’s unfair-competition law.”
It was granted leave, ex parte, “to serve copies of the summons, complaint, TRO, and order to show cause on all defendants by email pursuant to” Rule 4(f)(3). Following entry of a preliminary injunction precluding defendants from manufacturing or selling counterfeit Baby Shark products, two defendants moved to dissolve the injunction against them – and later, to be dismissed – on the ground that were not properly served process by email. The district court agreed, holding that that the Convention barred email service on defendants.
The Second Circuit affirms. “Drafted in 1965, the Convention unsurprisingly makes no mention of email service. Nevertheless, Article 10(a) stipulates that so long as the ‘State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad’ (emphasis added).”
While some district courts had interpreted “postal channels” to include email, “doing so here does not help Smart Study, since Article 10(a) applies only if ‘the State of destination does not object,’ see Art. 10, and China, for its part, has objected to service ‘by the methods provided by Article 10 of the Convention.’”
“Other district courts, including some within this Circuit, have held that the term ‘postal channels’ does not cover email service . . . . suggesting that Article 10(a) does not preclude email service on parties in China absent some other prohibition. But this interpretation clearly misconstrues the Convention, which ‘specifies certain approved methods of service and pre-empts inconsistent methods of service wherever it applies.’”
“Indeed, were the Convention to permit email service, it is difficult to see why any party ‘would ever choose slower, more costly methods’ of service laid out in the Convention’s text . . . . And reading into the Convention’s silence implicit permission for all types of service not affirmatively barred would render meaningless its ‘approved methods of service,’ encouraging end-runs around the very system it created.”
The panel also holds that email service could not be upheld under Fed. R. Civ. P. 4(f)(2)(A), which allows for methods of service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.” By its terms, this provision applies only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means,” and here the Hague Service Convention supplies the standards for service of process.
Thus the district court correctly denied default judgment as to the defendants served by email. “We are, of course, mindful of the difficulties companies face in policing trademark- and copyright-infringement abroad, particularly in China . . . . But the Hague Service Convention was not designed to ensure that the service of process in China is as efficient and fast as domestic service in the United States under the Federal Rules of Civil Procedure. Given that Smart Study has not even attempted to comply with the Convention’s requirements, we cannot say that the district court abused its discretion in denying relief here.”
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