“The Second Circuit imported a hierarchy into Rule 4(f) when there was not one.”
In December 2025, the U.S. Court of Appeals for the Second Circuit affirmed a decision from the U.S. District Court for the Southern District of New York that service of two China-based defendants by email violated the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, also known as the “Hague Convention,” and therefore was not permitted under Rule 4(f) of the Federal Rules of Civil Procedure. Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi, U.S. App. LEXIS 33039, at *1 (2d Cir. Dec. 18, 2025). While the Second Circuit looked at whether the Hague Convention explicitly identifies email as a permitted method of service, the proper question is whether the Hague Convention prohibits service by email.
The case involved global entertainment company Smart Study, which owns trademarks associated with the hit song “Baby Shark,” which appealed from a judgment of the district court dismissing two defendants alleged to have manufactured or sold counterfeit Baby Shark products.
Rule 4(f) of the Federal Rules of Civil Procedure identifies the following three avenues for serving an individual in a foreign country:
“(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or