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Fans of the Road Runner and Wile E. Coyote know that the overly clever coyote’s schemes get him into trouble. Such schemes make good plots for cartoons, but – as illustrated in Appel v Hayut[1] — should not be used in the practice of law.

Plaintiff Attempts to Circumvent Hague Service

As a matter of law, the Hague Service Convention applies when process is served in a Hague signatory country, such as Israel, from a venue outside that country.

In Appel, the Plaintiff concocted a scheme to circumvent the need for Hague service upon the Israeli defendant by hiring an Israeli vendor to mail the service to the defendant from within Israel’s borders.

As domestic service by mail is proper under Israeli law,[2] the Plaintiff reasoned that this would not trigger the need for Hague service.

Genius! Well, genius until the defendant challenged service.

Court Rules Service Was Improper

In holding that mail service was not proper in this case, the Court focused on FRCP 4(f)(2)(A).

The Court recognizes that courts are split as to whether service via mail is proper under Rule 4(f)(2)(A). Compare [Brockmeyer v. May, 383 F.3d 798, 806 (9th Cir. 2004)](finding that Rule 4(f)(2)(A) does not allow for service via international mail since because, among other things, “the common understanding of Rule 4(f)(2)(A) is that it is limited to personal service”) with In re Coudert Bros. LLP, No. 16 Civ. 8237 (KMK), 2017 WL 1944162, at *8 (concluding that the “most natural reading of Rule 4(f)(2)(A), on its face and in context, is that service may be effected by any means prescribed by the law of the recipient country,” including by mail). The Court finds Judge Karas’s opinion in In re Coudert Bros. LLP persuasive, as Rule 4(f)(2)(A) on its face appears to allow, without limitation, service by mail if the recipient country so allows.

Right Answers, Wrong Reasons

Unfortunately, the Court got the right answers for the wrong reasons.

First, Brochmeyer allows service by mail only when the clerk of the court dispatches the service into the postal channel. In this case, the service was dispatched into the postal channel by an Israeli vendor (not the clerk’s office) and thus fell afoul of Brochmeyer (and In re Coudert Bros.).

Second, service in this case was not by mail. Service here was initiated by an Israeli vendor – a related party to the litigation — who just happened to use the Israeli postal channel to facilitate service. Article 10(c) of the Hague Convention authorizes related party service and — unfortunately for our wile Plaintiff — Israel prohibits Article 10(c) service.[3]

More generally, under Water Splash, Inc. v. Menon,[4] mail service abroad is only proper if such service is

  1. Executed in accordance with the local court’s rules; and
  2. Allowed by the destination country

So, in this case, the Plaintiff’s service upon the Israeli defendant failed both arms of the Water Splash test for proper mail service abroad.

How LLS Can Help

The bottom line? Plaintiffs should leave the “super genius”[5] schemes to the cartoons.

Instead, turn to the professionals at LLS for assistance when serving process abroad. With more than 35 years of experience effecting service in more than 90 countries, we are the leading provider of international service of process and litigation in North America.

Contact LLS today to learn more about how we can help you.

Call 1-800-755-5775  or simply fill out our online inquiry form.


[1] 20-CV-6265 (JPC)(NY 2020).
[2] Library of Congress: Service of Process [Israel]; https://www.loc.gov/law/help/service-of-process/israel.php; and Israel did not object to mail service under the Hague Convention. See also Chapter 32, Civil Law Procedure Regulations 5744-1984.
[3] https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=405&disp=resdn
[4] 137 S. Ct. 1504, 1513 (2017).
[5] For those who are not old enough to remember “classic” cartoons, Wile E. Coyote considered himself to be a super genius.

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