Ms. Doe, an alleged victim, brought a suit against a career diplomat/Jordanian national, who currently resides in Austria, but had been previously employed by the Permanent Mission of Jordan to the UN in New York. She alleges battery, assault, false imprisonment, and intentional infliction of distress. The issue herein is service of process. There has been a 4-year struggle by Ms. Doe to serve Mr. Hyassat. She attempted personal service on several occasions in NY. After years, she was able to locate his email address in documents for the International Atomic Energy Agency in Vienna, Austria where he was engaged in meetings in 2015. Upon belief that he is now residing in Austria, she sought leave to serve him through the gmail addresses she located. At the request of the court, she submitted evidence that the gmail address is operational.
The court cited to Rule 4(f) of the FRCP. It concluded that Ms. Doe has made reasonable attempts to effectuate service, and showed that court intervention is necessary to aid her in serving Mr. Hyassat. Mr. Hyassat is apparently residing in Austria, which is a treaty partner with the United States pursuant to the Hague Service Convention. The court opined that Rule 4(f)(3) permits a court to direct service on a defendant in a foreign country by any means ‘not prohibited by international agreement.’ The court then stated that “[a]lthough Austria has objected to Article 10(a)… which permits service via ‘postal channels’ … such an objection does not extend to service via email.” Therefore, the SDNY concluded that service by email is not prohibited by international agreement. The SDNY also concluded that the meeting minutes did in fact provide Mr. Hyassat’s email address, which would comport with his past employment as a diplomat in NY, and that a London-based investigator opined that the email addresses are active (that emails sent to the address will not ‘bounce back’ as undeliverable to the sender). Therefore, the SDNY concluded that service by email comports with due process. It authorized Ms. Doe to serve Mr. Hyassat with a summons and Amended Complaint to a gmail, yahoo, and official Jordanian government email address.
Mr. Hyassat has not, as of this post, responded to the pleading. Also, note, that the opinion does not address the fact that Mr. Hyassat is, as the court calls him, a “career diplomat.” If Mr. Hyassat does respond to the pleading, he may, if applicable, seek jurisdictional immunity based either on residual immunity from his acts in NY while a diplomat in NY, or, if he is currently qualified as a diplomat in Austria, immunity against service in that country. It is unclear what immunity he may or may not have pursuant to the Vienna Convention.
One more note – as often reported by Ted Folkman in his legal blog, Letters Blogatory, the conclusion that a country that objects to service by postal channels is not also objecting to service by email is not necessarily the commonly accepted rule. For example, see a 2022 post by Ted here.