N.D. W. Va. Approves E-Mail Service of Process on Overseas Defendant

A West Virginia federal court has held that e-mail service is permissible against foreign defendants that have proven to be elusive. In the case, Williams v. Advertising Sex LLC., --- F.R.D. ----, 2005 WL 2837574 (N.D. W. Va. Oct. 25, 2005), the plaintiff initially sought to serve the defendants pursuant to Rule 4(f)(3) as opposed to the means outlined in Rules 4(f)(1) or (2). Because the Fourth Circuit Court of Appeals had not yet addressed that issue, the district court adopted the reasoning of the Ninth Circuit in Rio Properties, Inc., v. Rio International Interlink, 284 F.3d 1007, 1014-15 (9th Cir.2002), which held that each of Rule 4(f)'s three methods for international service of process is equivalent to one another. Thus, the court concluded that the plaintiff's petition for service under Rule 4(f)(3) of the Federal Rules of Civil Procedure could proceed without seeking service under the other provisions of Rule 4(f).

The court then went on to hold that Rule 4(f)(3)'s two requirements for application to a case--that the means of service be "directed by the court" and "not prohibited by international agreement"--were satisfied because issuance of an order by the court would satisfy the first requirement and Australia, the home of the defendants, was not a signatory to the Hague service convention. Having found that Rule 4(f)(3) applied to the case, the court went on to determine whether service by e-mail comported with the standards of due process:

In this case, the record establishes that the defendants are "sophisticated participants in e-commerce." In her motion, Williams has provided e-mail addresses for defendant Scott Moles and related website addresses through which Moles conducts e-commerce. These websites are well established and maintained for the purposes of e-commerce. In short, Williams has demonstrated that a reliable channel of communication to defendant Moles exists by way of e-mail addresses linked to established websites that Moles uses to conduct business.

Further, Williams proposes to serve process by e-mail by utilizing the website service "Proof of Service--electronic" ("PoS-e") , which offers encrypted on-line delivery of documents and returns a digitally signed proof of delivery once the document has been received by the target e-mail, thus enhancing the reliability of electronic service.

Williams has established that her prior attempts to serve the defendants have resulted in Moles' direct knowledge that he is sought for the receipt of legal documents from the United States. Rather than ease the process, Moles' knowledge has only erected barriers to formal service. Thus, given the circumstances of this case, a direction to serve process by e-mail in addition to international registered mail and international standard mail to all known addresses of the defendants is "reasonably calculated ... to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314 (1950).