United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
PERMISSION TO SERVE DEFENDANT THROUGH ALTERNATIVE MEANS
PURSUANT TO FED. R. CIV. P. 4(F)(3) 
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion for Permission to
Serve Defendant Through Alternative Means Pursuant to
Fed.R.Civ.P. 4(f)(3). Plaintiff seeks to serve Defendant
through electronic mail (“email”). For the
reasons that follow, the Court will grant Plaintiff's
Motion for Permission to Serve Defendant Through Alternative
Means Pursuant to Fed.R.Civ.P. 4(f)(3).
FKA Distributing Company, LLC (“Homedics”) filed
a Complaint against Yisi Technology Co., Ltd. (“Yisi
Technology”) on January 24, 2017. See Dkt. No.
1. Plaintiff issued a Summons that same day. See
Dkt. No. 11, pg. 2 (Pg. ID 35). Plaintiff emailed Defendant
the Summons to the email address Plaintiff found on
Defendant's website. Id. Defendant failed to
respond, so Plaintiff translated the documents and submitted
them to China for service under the Hague Service Convention
on April 19, 2017. Id. Plaintiff failed to effect
service on Defendant and this Court dismissed the Complaint
without prejudice on June 19, 2017. Dkt. No. 5, pg. 1-2. The
Court then reopened the case on June 21, 2017. See
Dkt. No. 9. Plaintiff filed the current motion on August 30,
2017, requesting permission to serve Defendant by email.
See Dkt. No. 11. Plaintiff claims the vendor who
served the Summons for them stated that China has been taking
up to one year or more to process documents served under the
Hague Convention. Dkt. No. 11, pg. 2 (Pg. ID 35). Therefore,
Plaintiff seeks an order allowing service by email in order
to prevent further delay of the service of process.
4(h)(2) of the Federal Rules of Civil Procedure allows
service of process on a foreign business in the manner
prescribed by Rule 4(f). Under Rule 4(f)(3), service is
allowed “by other means not prohibited by international
agreement, as the court orders.” Fed.R.Civ.P. 4(f)(3).
Therefore, service under Rule 4(f)(3) is allowed if (1)
directed by the Court; and (2) not prohibited by
international agreement. See Rio Props., Inc. v. Rio
Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir.
2002). Service under this rule does not have to be a last
resort, nor is it only warranted in extraordinary
circumstances. Id. at 1015-16.
Eastern District of Michigan has allowed service by email
when the party to be served does business on the internet and
through email, and when the movant demonstrates that the
email address in question is valid. See FenF, LLC v.
Ritacco, No. 16-cv-11097, 2016 WL 5235407, at *3 (E.D.
Mich. Sept. 22, 2016); Elcometer, Inc. v. TQC-USA,
Inc., No. 12-cv-14628, 2013 WL 592660, at *3 (E.D. Mich.
Feb. 14, 2013); McCluskey v. Belford High Sch., No.
2:09-14345, 2010 WL 2696599, at *3 (E.D. Mich. June 24,
2010). Courts in this district and numerous other federal
courts have typically held that service by email comports
with Due Process if the above factors are met. See
McCluskey, 2010 WL 2696599, at *3.
by International Agreement
Rule of Civil Procedure 4(f)(3) allows service by alternative
means on a foreign party if the service is allowed by
international agreement. China and the United States are both
signatories to the Hague Convention. The Southern District of
New York holds that the Hague Convention does not prohibit
service by email to China. Sulzer Mixpac AG v. Medenstar
Indus. Co. Ltd., 312 F.R.D. 329, 332 (S.D.N.Y. 2015)
(holding that China's objections to service by postal
mail did not extend to service in China via email, and
allowed service by email to defendants located in China). The
Northern District of California has also held that the Hague
Convention does not prohibit service by email. See
Williams-Sonoma Inc. v. Friendfinder Inc., No. C
06-06572 JSW, 2007 WL 1140639, at *2 (N.D. Cal. Apr. 17,
2007) (allowing service via email under the Hague
Convention). In conclusion, several courts have held that the
Hague Convention allows service by email.
Process and Validity of Email Address
comport with Due Process, courts in the Eastern District of
Michigan have considered whether the party to be served via
email does business via email, and whether the movant has
established that the email address in question is valid.
See FenF, LLC v. Ritacco, No. 16-cv-11097, 2016 WL
5235407, at *3 (E.D. Mich. Sept. 22, 2016). Some ways to show
the validity of an email address include: providing the Court
with declarations from individuals who received emails from
the email address in question, and demonstrating that emails
mailed to the email address in question were not returned as
undeliverable or did not “bounce back.” See
id.; see also Popular Enters., LLC v. Webcom Media
Group, Inc., 225 F.R.D. 560, 562 (E.D. Tenn. 2004).
Here, the Plaintiff's Exhibits B and C, attached to their
motion, show that Defendant lists two emails to contact them
with-one for customer service, and one for potential dealers
of their product. Plaintiff emailed Defendant the Summons and
Complaint to the customer service email listed on its
website: email@example.com. See Dkt. No.
11-2, pg. 2 (Pg. ID 43). The email did not bounce back to
Plaintiff. See Dkt. No. 11-2, pg. 2 (Pg. ID 43).
This shows that Defendant does conduct business via email and
the email address in question is valid. For these reasons,
the email service comports with Due Process.
in Service Under ...