Second Circuit Confirms Hague Service Convention Bars Email Service on Signatories, Affecting Strategic Decision Whether to Waive Service
A recent Second Circuit decision brings some clarity to a contested area of law, establishing that the Hague Service Convention (the "Convention") creates an exclusive framework for service of process in signatory countries, blocking plaintiffs from using Federal Rule of Civil Procedure 4(f)(3) as a workaround to serve defendants in signatory countries by email.
In Smart Study Co., Ltd. v. Shenzhenshixindajixieyouxiangongsi, 164 F.4th 164 (2d Cir. 2025), the Second Circuit affirmed the dismissal of trademark infringement claims against China-based defendants, holding that service by email violated the Hague Service Convention and was therefore improper under Federal Rule of Civil Procedure 4(f).
The Second Circuit's decision resolves an important question regarding the relationship between the Hague Service Convention and Rule 4(f)(3). Some district courts had interpreted the Convention's silence on email service as permissive, allowing plaintiffs to obtain court-ordered email service under Rule 4(f)(3) as an alternative to the Convention's formal procedures. The Second Circuit squarely rejected this approach.
The court emphasized that the Convention's text "create[s]" a closed universe of "simple and certain means" of serving parties in signatory countries. Smart Study, 164 F.4th at 171. Email service, the court reasoned, is an "inconsistent method[]" preempted by the Convention because permitting it would undermine the Convention's entire structure—after all, "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. Id.
The court also foreclosed the use of Rule 4(f)(2) as an alternative pathway. Because Rule 4(f)(2) applies only "if there is no internationally agreed means, or if an international agreement allows but does not specify other means," and the Convention prohibits email service, plaintiffs cannot rely on Rule 4(f)(2) to circumvent the Convention's requirements. Id. at 172.
Smart Study carries strategic implications for defendants deciding whether to waive service. Defendants in signatory countries—particularly China—may now have stronger incentives to decline waiver requests when those requests arise from Second Circuit litigation. The Convention's exclusivity means that a defendant who declines to waive service forces the plaintiff to navigate the full Hague Convention process. For defendants within the Second Circuit, this creates tactical advantages: extended time to prepare a defense, increased litigation requirements for plaintiffs, and the possibility that plaintiffs may be unable to complete service at all. Smart Study is also favorable persuasive precedent for defendants in jurisdictions where the same legal question may be unsettled.
