Key Points

• DNJ granted alternative service by email and website publication under FRCP 4(f)(3) after prior denial for insufficient facts.
• Hague Convention service excused where defendant's true address in China could not be confirmed despite reasonable diligence.
• DNJ applies a three-factor test under Rule 4(f)(3): no treaty prohibition, method reasonably calculated to give notice and good faith effort at traditional service.

Building the Factual Record

When a court denies a motion for alternative service on a foreign defendant, the answer is not to give up but to come back with better facts. And when building that factual record, few things are more persuasive than showing that another court has already blessed the very same service method on the very same defendant.

A recent decision from U.S. Magistrate Judge Jessica S. Allen of the District of New Jersey illustrates both principles, granting a renewed motion for service by email and website publication under Federal Rule of Civil Procedure 4(f)(3) after having denied an identical request just months earlier.

After the initial denial, the plaintiffs offered proof that a federal court in Illinois had already approved and accomplished service on the defendant by the same means and secured Judge Allen’s approval.

Amazon Product Listings

The suit began as a declaratory judgment action of no patent infringement after several of the plaintiffs' Amazon product listings were removed, allegedly after Amazon received takedown requests from an email address controlled by the defendant.

Plaintiffs initially filed the case in the Northern District of Illinois, which was dismissed for lack of personal jurisdiction (albeit after their motion for alternative service was granted). After refiling in the DNJ, plaintiffs made another motion for alternative service, specifically to allow service by emailing the complaint to that specific email address and by publishing a link to the complaint on a website operated by plaintiffs’ counsel.

Judge Allen denied the motion without prejudice in August 2025 because there were no specific facts tying the email address to defendant. Plaintiffs made a renewed motion several months later after they were able to proffer additional factual support regarding defendant’s use of the email address, which the court granted.

Service Outside the United States

FRCP 4(f) governs service of individuals located outside the United States and provides that service of an individual outside a judicial district of the United States may be accomplished:

• 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;
• if there is no internationally agreed means . . . by a method that is reasonably calculated to give notice []; or
• by other means not prohibited by international agreement, as the court orders.

The court first determined whether plaintiffs were required to attempt service under the Hague Convention. After noting apparent disagreement in the DNJ about whether service through the Hague Convention must be attempted when the defendant’s country is a signatory to the Hague Convention, the court concluded it was unnecessary here because defendant’s true address within the foreign county (China) could not be confirmed despite plaintiffs’ reasonable investigation, and thus physical service in China could not be accomplished.

The court next reviewed plaintiffs’ proposal for alternative service by email notification and website publication. In the DNJ, a party must establish three factors when a party proposes alternative service under 4(f)(3):

• there is no international agreement prohibiting service by the proposed method;
• the proposed method of service is reasonably calculated to provide the defendant notice; and
• [plaintiffs] have made a good faith effort to locate and serve defendants by traditional means.

Judge Allen analyzed each factor in turn. First, she found that there was no international agreement prohibiting service by email or website publication.

Second, she assessed the two proposed methods of service. The court noted that service by email was generally permitted if the person served “is likely to receive the summons and complaint” at the email address provided. The court found that to be the case here, where plaintiffs successfully used the same email address to serve defendant in the predecessor Illinois Action in April 2025. Notably, in the Illinois Action, plaintiffs’ motion for alternative service regarding that same email address was granted and, as the court here explained, “once an alternative service method is approved by a court under Rule 4(f)(3), that same service method can be used to serve the same defendant in a subsequent case.”

The court then discussed plaintiffs’ proposed second method — service by publication on a website. With this method, courts have similarly required the proponent to show that the summons and complaint are “likely to reach” the intended recipient, and thus have typically only allowed such service where paired with another method, like email. The court reached the same conclusion here, and found the proposed service by website publication, coupled with service by email, comported with due process.

Finally, Judge Allen turned to the third Rule 4(f)(3) factor, concluding that plaintiffs made a good faith effort to locate and serve defendant by traditional means, where the record indicated they investigated defendant’s last known address in China and determined service could not be made, then made four unsuccessful service attempts on a registered agent in New Jersey. The court noted that defendant himself had raised the purported availability of this New Jersey registered agent in briefing in the Illinois Action.

Thus, critical to the court’s holding — and what appears to be the difference between the August 2025 denial and the March 2025 grant — was that plaintiffs provided sufficient facts showing that the defendant was likely to receive the summons and complaint via the proposed email, in particular where another Court had approved service by the same method.

The Takeaway

Sometimes the law is both strict and flexible.

Practitioners should be cognizant that service requirements, although strictly requiring compliance with a defendant’s due process rights, are nevertheless flexible enough to allow reasonable proposed measures of alternative service when coupled with adequate factual support.

Paul W. Kalish and Jonathan J. Madara are members of the IP Litigation team in Fox Rothschild’s Princeton, NJ office and write about patent litigation decisions in the District of New Jersey. Contact Paul at pkalish@foxrothschild.com or 609.895.6751 and Jonathan at jmadara@foxrothschild.com or 609.844.7428.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.