United States District Court, W.D. Virginia, Roanoke Division
E. Conrad, Senior United States District Judge.
case is presently before the court on plaintiff United States
of America's motion for alternate service of process
under Rule 4(f)(3) of the Federal Rules of Civil Procedure.
The United States requests an order authorizing service by
email on defendant John Marsteller, who currently resides in
Hong Kong. For the reasons stated below, the motion will be
United States has assessed penalties against Marsteller for
failing to comply with certain reporting requirements
regarding his foreign bank accounts. In an attempt to enter
into an agreement governing the payment of those penalties
without the need for a collection action, the United States
contacted Marsteller by email at email@example.com and by
letter sent to Marsteller's Hong Kong address. Dkt. No.
5-2. A week later, Marsteller mailed a letter to the United
States, explaining that he could not pay the penalties
assessed against him. Dkt. No. 5-3. The United States
responded in an email requesting certain financial
information to determine Marsteller's ability to pay the
assessed penalties. Dkt. No. 5-4. Marsteller then responded
by email and mail, restating his position that he did not
have the ability to pay the penalties. Dkt. No. 5-5.
United States then filed this lawsuit on September 22, 2017,
and sent a request for waiver of service of summons by email
and mail to Marsteller. Dkt. No. 5-6. Marsteller emailed the
government an unclear photograph of the signed waiver, but
did not respond to a request to provide a copy of the waiver.
See Dkt. No. 5-7. The United States then submitted a request
under the Hague Convention for assistance with service by the
appropriate Hong Kong authorities. Those authorities
processed the request, but were unable to serve Marsteller.
Dkt. No. 5-8.
serve process on an individual in a foreign country, a
federal plaintiff must comply with both constitutional due
process notice requirements and Rule 4(f)."
Enovative Techs., LLC v. Leor, No. CIV.
JKB-14-3956, 2014 WL 7409534, at *I (D. Md. Dec. 24, 2014)
(citing WhosHere. Inc. v. Orun, No. 1:13-cv-00526,
2014 WL 6708117 (E.D. Va. 2014)). Due process requires a
plaintiff to provide "notice [that is] reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections."
Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950). Rule 4(f)(3) permits the court to
direct service on an individual in a foreign country "by
... means not prohibited by international agreement, as the
court orders." Fed.R.Civ.P. 4(f)(3).
court concludes that service by email satisfies both the
requirements of due process i and Rule 4(f)
in this case. The court is convinced that service by email is
reasonably calculated to apprise Marsteller of the pending
action and will afford him the opportunity to present his
objections. Marsteller knows that the United States has
initiated this action against him because the United States
informed him of the action through email, and Marsteller
responded by email with a signed, albeit unclear, copy of a
waiver of service of summons. Courts have permitted service
by email where, as here, the defendant acknowledged the
lawsuit in an email response. See Enovative Techs.,
LLC, 2014 WL 7409534, at *1 (permitting service by email
when defendant acknowledged receipt of complaint by email).
addition to Marsteller's demonstrated willingness to:
communicate by email, the court recognizes the United States
prior diligent efforts to effect service. The United States
first attempted to resolve this matter without filing a
lawsuit. See Dkt. No. 5-2. When those efforts failed, the
United States attempted to serve Marsteller through the
process established by the Hague Convention. The United
States then attempted to secure a waiver of service of the
summons. In light of Marsteller's knowledge of the
lawsuit, evident use of his email address to communicate
about the subject of die lawsuit, and the United States'
diligence in ensuring actual notice of the lawsuit, the court
finds that the United States' request to serve Marsteller
by email comports with due process.
court must now determine whether service by email is
sufficient under Rule 4(f). Under Rule 4(f)(3), the court may
order service by email unless an international agreement
prohibits such a method of service of process. Because
Marsteller resides in Hong Kong, the Hague Convention
applies. Facebook. Inc. v. Banana Ads. LLC, No.
C-11-3619 YGR, 2012 WL 1038752, at *2 (N.D. Cal. Mar. 27,
2012). Several courts have recognized that the Hague
Convention does not prohibit service by email. Fourte
Int'l Ltd. BVI v. Pin Shine Indus, Co., No.
18-CV-00297-BAS-BGS, 2018 WL 1757776, at *I (S.D. Cal. Apr.
11, 2018); Lexmark Int'l. Inc. v. Ink Techs. Printer
Supplies, LLC, 295 F.R.D. 259, 261 (S.D. Ohio 2013)
(collecting cases holding the same). Accordingly, the court
may direct service by email under Rule 4(f)(3).
court further observes that the United States Supreme Court
has adopted an amendment to Rule 5 of the Federal Rules of
Civil Procedure, which will permit service by any electronic
means to which a party has consented in writing. Although
this amendment will not take effect until December 1, 2018,
the rule confirms the growing recognition of the
reasonableness of service by electronic means.
the court finds that service by email complies with both the
requirements of due process and Rule 4(f) in this case. The
court will therefore permit the United States to serve the
complaint and summons on Marsteller by email.
reasons stated, the United States' motion for alternate
service will be granted. The Clerk is directed to send copies
of this memorandum opinion and the ...