What the Second Circuit Got Wrong About Rule 4(f) and the Hague Convention

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.

Rule 4(f)

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

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.”

Fed. R. Civ. P. 4(f) (emphasis added).

A plain reading of Rule 4(f) provides that Rule 4(f) is not hierarchical. A party wishing to serve a foreign individual pursuant to Rule 4(f) can use any one of options (1), (2), or (3). See id. A majority of courts agree that Rule 4(f) is not hierarchical, including the U.S. Courts of Appeals for the First, Fourth, Fifth, and Tenth Circuits, as well as the U.S. Courts of Appeals for Federal Circuit and  District of Columbia Circuit. Accordingly, a party is free to serve a foreign individual through Rule 4(f)(1), by any internationally agreed means (such as those provided in the Hague Convention), or through Rule 4(f)(3), by any means not prohibited by an international agreement (like the Hague Convention). See Fed. R. Civ. P. 4(f)(1), (3).

Second Circuit Ruling

The plaintiff-appellant in Smart Study argued that the Hague Convention does not prohibit service by email, and, therefore, service of the defendants in question by email was proper under Rule 4(f)(3). Smart Study, U.S. App. LEXIS 33039, at *11. The Second Circuit correctly observed that the Hague Convention “unsurprisingly” does not mention service by email, since it was drafted in 1965 before email existed. Id. at *11-*12. Because service by email is not mentioned in the Hague Convention, the Second Circuit should have concluded it does not prohibit service by email. Instead, the Second Circuit said that because the Hague Convention prohibits service by mail (specifically “by postal channels”), email is also prohibited. Id. at *11-*16. However, delivering physical items by “postal channel” is not the same as delivering email by electronic communication.

The Second Circuit then went even further. It held that the Hague Convention “‘creates’ a closed universe of ‘simple and certain means’ of serving parties in foreign countries.” (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705-06, 108 S. Ct. 2104 (1988)). In doing so, the Second Circuit imported a hierarchy into Rule 4(f) when there was not one. Under Smart Study, a party who wishes to serve a foreign individual in one of the 120 countries which are members of a Hague Convention must effectuate service through a means provided in the Hague Convention pursuant Rule 4(f)(1). This makes Rule 4(f)(3) superfluous.

The Second Circuit relied heavily on the preamble of the Hague Convention and the Supreme Court case Volkswagenwerk in reaching this decision. See Smart Study, U.S. App. LEXIS 33039, at *11 (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705-06, 108 S. Ct. 2104 (1988)). The Second Circuit misreads both. First, the preamble of the Hague Convention provides that its objective is “to create appropriate means” of service, which the Second Circuit construed to mean that any service of process not included in the Hague Convention is not an “appropriate” means of service. Id. at *13. This was not the stated purpose of the Hague Convention. Providing explicit permission to perform an act is not the same as prohibiting a different, unspecified act. Furthermore, the preamble is irrelevant to the case at hand because email did not exist in 1965 when the Hague Convention was drafted. It is conjecture to suggest the drafters in 1965 wrote “create appropriate means [of service]” to mean that they were prohibiting means of service which they could not conceive of because they did not exist.

The Second Circuit’s reliance on Volkswagenwerk for this interpretation is also misplaced since the cited language is dicta and Volkswagenwerk is irrelevant to the issue that was before the Second Circuit. In Volkswagenwerk, the Supreme Court addressed whether service on a foreign corporation by serving its domestic subsidiary is compatible with the Hague Convention. 486 U.S. at 696, 108 S. Ct. 2104. Accordingly, the Supreme Court was not assessing whether service by email was proper (Volkswagenwerk was decided in 1988, nearly a decade before email became a mainstream means of communication). Nor was the Supreme Court addressing whether the Hague Convention’s silence on a particular method of service suggests it is prohibited. In Volkswagenwerk, the Supreme Court only said that “[t]he [Hague] Convention provides simple and certain means by which to serve process on a foreign national.”  486 U.S. at 706, 108 S. Ct. 2104. This does not support the argument that the Hague Convention created a “closed universe” of all forms of service of process, including ones that did not exist at the time it was drafted. Perhaps more importantly, the Supreme Court in Volkswagenwerk held that the Hague Convention did not apply and service was proper. 486 U.S. at 708, 108 S. Ct. 2104.

More to Come

Presently, there is an appeal on the same issues before the U.S. Court of Appeals for the Seventh Circuit, Kangol LLC v. Hangzhou Chuanyue, No. 25-2205, which is fully briefed and set for oral argument on February 25, 2026, at 9:30 am.

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Author: iqoncept