932 F. Supp. 2d 561
S.D.N.Y.2013Background
- Plaintiffs allege PRC and Baidu conspired to suppress pro-democracy political speech in Baidu search results.
- China declined to effect service under the Hague Convention Article 13, arguing service would infringe sovereignty or security.
- Baidu appeared specially to contest service; China did not otherwise appear in the action.
- Plaintiffs sought default judgment; the court considered whether service was properly effected.
- USM-94 forms indicated attempted Hague service through the Chinese Central Authority, which China rejected citing Article 13.
- Alternative service attempts via Federal Express and Baidu offices occurred, but service was not valid under the Hague Convention and China objected to Article 10 postal channels.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service complied with the Hague Convention | China's Article 13 objection was illegitimate; service valid despite Article 13. | China properly invoked Article 13 and refused Hague service. | Defendants not properly served; Hague service rejected. |
| Whether actual notice can substitute for Hague service when Article 13 is invoked | Actual notice suffices despite formal Hague procedures. | Article 13 refusal cannot be circumvented by actual notice. | Actual notice cannot cure Hague service when Article 13 is invoked. |
| Whether Article 15 permits a default judgment in this scenario | Article 15 allows default judgment if transmitted under Convention and no certificate received. | No proper transmission and a certificate noting Article 13 were received. | Default judgment not permitted under Article 15. |
| Whether Rule 4(f)(3) alternative service could be authorized | Court could order alternative service despite Article 13 objection. | Unclear authority; Article 13 precludes alternative service without satisfying Convention. | Court grants dismissal but stays for 30 days to consider alternative service; authority undecided. |
Key Cases Cited
- Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005) (strict Hague compliance not automatic; actual notice may suffice in limited contexts)
- Dickerson v. Napolitano, 604 F.3d 732 (2d Cir. 2010) (burden of proof on service; Rule 4 governs foreign service)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (U.S. 1988) (mandatory Hague Convention compliance; service abroad)
- In re S. African Apartheid Litig., 643 F. Supp. 2d 423 (S.D.N.Y. 2009) (discusses Rule 4(f)(3) and Article 13 interactions)