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October 2019

Liability Issues with Machine Learning Artificial Intelligence

By:  Sarah B. Jansen and Holly Whitlock

HeplerBroom LLC


Advanced technology is now prevalent in many industries such as e-commerce, medicine, construction and transportation. In fact, many of these industries have been immersed in advanced technology over the past few decades and are no strangers to the use of artificial intelligence (“AI”). For instance, Amazon (the world’s largest e-commerce marketplace) reportedly uses over 200,000 robots in sorting distribution centers worldwide.[i] 


Much advanced technology in use involves “machine learning,” a branch of artificial intelligence. Computer Scientist and machine learning pioneer, Tom M. Mitchell, defines machine learning as “the study of computer algorithms that allow computer programs to automatically improve through experience.[ii] In other words, “machine learning” involves computers that train themselves rather than simply following detailed programs inputted by humans.


Due to the anticipated insufficiency of negligence theories for claims involving machine learning AI (i.e., negligence principles generally focus on human conduct that may not appropriately be extended to AI), many legal scholars predict new, potential liability theories in future litigation. For example, a common enterprise theory of liability has been suggested.[iii]  Under such theory, all individual persons and entities creating, implementing and utilizing AI would jointly bear some responsibility for any damages the AI may cause.[iv] The system would not attempt to assess degrees of culpability or find fault, recognizing that such a finding “may be impossible because of the black-box nature of AI.” The implementation of such a system would require significant oversight to avoid resulting in a windfall to potential claimants since the system would include an “inference of liability” as to all relevant parties “allowing the injured party to be made whole.”[v]

Some commentators have also proposed expanding products liability theories against the creators of autonomous robots, based on the idea that, if a robot causes harm, this is implicit proof of some defect with the robot.[vi] This would likely resemble a strict liability standard—if a robot causes harm, the creator must pay. This approach may make sense in that the creator is in the best position to prevent harm and absorb economic losses stemming from such harm, but it may also go too far in removing any inquiry into human fault for the harm and may stifle innovation with autonomous AI.[vii]

Attorney Matthew Wagner, in his article, “You Can’t Sue a Robot: Are Existing Tort Theories Ready for Artificial Intelligence?” also points to another possible solution in looking to modern worker’s compensation schemes. [viii] As Wagner notes, “the purpose of workers’ compensation laws is to avoid endless litigation over who is at fault when an employee suffers an injury at work.” [ix] Workers’ compensation insurance spreads the risk across all employers, provides remedies for individual workers, and shields individual employers from catastrophic damages.[x] This approach may properly expand into AI use as well.

Other possible theories have also been recognized, including treating robots as chattel or children for legal purposes, or requiring robot creators and/or users to register robots as some variation of a corporate entity.[xi] However, each of these theories have their respective downfalls and do not quite cover all aspects of machine learning AI liability issues. As such, it has been suggested that a new synthesis be developed based on the strengths and weaknesses of existing legal theories, much like what was done for corporations in the 19th and 20th centuries; courts attempted to fit corporations into one of the existing folds, but in time the shortcomings of such an approach became apparent and courts and legislators went to work, over many decades, crafting litigation rules for corporations that were attentive to the unique nature and functioning of corporations.[xii] This is likely where machine learning AI is headed—toward a new set of legal rules and standards governing liability issues.

Pending cases may also assist in giving some direction as to future litigants and causes of action involving liability for malfunctions/losses due to autonomous AI.  Two cases – purportedly the first of their kind - are currently being played out; both are in their nascent stages though so only time will tell how useful either of them will be in providing direction for future claims.


The first case is Wood v. State of Arizona, filed on March 18, 2019, involving an autonomous vehicle designed by Uber Technologies Inc. that struck and killed a pedestrian while autonomously driving with a distracted “back up” human driver.[xiii] Shortly after the incident, Uber settled with the decedent’s family, and almost a year later, Uber was relieved of all criminal liability, most likely due to a lack of proof of any criminal mens rea.[xiv] But after the criminal investigation results became known, the decedent’s family filed the March 2019 civil lawsuit against two entities: the State of Arizona and the City of Tempe. The Complaint alleges two counts of negligence against both, accusing them of inadequate oversite of driverless vehicles and a violation of a non-delegable duty to provide reasonably safe roads.[xv]


Interestingly, a year or so after the incident, in conducting their own independent investigation, the National Transportation Safety Board determined the accident was, in fact, caused by a variety of factors, none of which involved the State of Arizona’s or the City of Tempe’s negligence. An article in The Economist Magazine summarized the NTSB’s findings as follows:


“The vehicle recognized the pedestrian in the road, but its perception system got confused: it classified her as an unknown object, then as a vehicle and finally as a bicycle, whose path it could not predict. Just 1.3 seconds before impact, the self-driving system realized that emergency braking was needed. But the car’s built-in emergency braking system had been disabled, to prevent conflict with the self-driving system; instead a human safety operator in the vehicle is expected to brake when needed. But the safety operator, who had been looking down at the self-driving system’s display screen, failed to brake in time.”[xvi] 


            So, according to the findings, a system-design flaw and human oversight error caused the accident, but nevertheless the decedent’s family seeks to hold the State of Arizona and the City of Tempe responsible for even allowing autonomous vehicles on the streets. Time will tell about these entities’ culpabilities, but regardless, it is fascinating to see where liability for damages caused by artificial intelligence may be assessed, now and in the future.


The second suit, filed in the UK in May 2019, seeks $23 million in damages allegedly caused by artificial intelligence.[xvii] The plaintiff, Samathur Li Kin-kan, is suing Tyndaris Investments, a company that utilized a supercomputer called “K1” to manage plaintiff’s investment money.[xviii] The supercomputer engaged in machine learning and studied Internet sources such as news and social networks for forecasting of investment transactions in the United States. Then, based on the information it gathered, it made investment transactions, and continued to study and adjust investment strategies according to its own research.[xix] The plaintiff alleges K1 did not perform as promised—the supercomputer lost him over $20 million in a single day.[xx]


This case has garnered significant publicity as an opportunity for courts to finally address where liability should fall for decisions made entirely by a machine.[xxi] However, it is worth noting the actual allegations are against Tynardis’ CEO, Raffaele Costa, who convinced Li Ki-kan to utilize K1 for investment trading, and the crux of the lawsuit centers around Costa’s representations to Ki-kan about K1’s money-making abilities.[xxii] So while this case has the potential to iron out some liability issues for cases involving damages caused by AI—for example who is responsible for the losses: Tyndaris as the company selling the product? Costa as the CEO who personally marketed K1’s capabilities? K1’s software developer or other vendors who contributed to making K1? Li Kin-kan himself for how he utilized K1?—in the end, it may amount only to a misrepresentation/false advertising issue.[xxiii] The case will reportedly proceed to trial in early 2020.[xxiv] 


[i] Peter Holley, Amazon’s One-Day Delivery Depends on the Work of Thousands of Robots, THE WASHINGTON POST, June 15, 2019,



[ii] Iriondo, Roberto Differences Between AI and Machine Learning, and Why it Matters. Data Driven Investor, October 15, 2018, Accessed on August 18, 2019.



[iii] Sullivan, Hannah and Scott J. Schweikart, “Are Current Tort Liability Doctrines Adequate for Addressing Injury Caused by AI?”  AMA J Ethics. 2019;21(2):E160-166. doi: 10.1001/amajethics.2019.160.


[iv] Id.





[vi] Wagner, Matthew. You Can’t Sue a Robot: Are Existing Tort Theories Ready for Artificial Intelligence? Frost, Brown, Todd LLC, February 7, 2018, Accessed on August 18, 2019.




[vii] Id.




[viii] Id.




[ix] Id.




[x] Id.



[xi] Michalski, Roger (2018) "How to Sue a Robot," Utah Law Review: Vol. 2018 : No. 5 , Article 3.


[xii] Id.


[xiii] Christine Wood, et. al. v. State of Arizona, et. al., Case No. CV2019 090948 (Sup. Ct. Az. March 18, 2019).



[xiv] Zaveri, Mihir. Prosecutors Don’t Plan to Charge Uber in Self-Driving Car’s Fatal Accident. The New York Times, March 5, 2019,



[xv] Christine Wood, et. al. v. State of Arizona, et. al., Case No. CV2019 090948 (Sup. Ct. Az. March 18, 2019).


[xvi] T.S. Why Uber’s self-driving car killed a pedestrian. The Economist, May 29, 2018. Accessed on August 18, 2019.


[xvii] Blythe, Liz and Zoe Sims. The Case of the Robot and the $23 million – Who to sue when things go wrong?  July 5, 2019,


[xviii] Beardsworth, Thomas and Nishant Kumar, Bloomberg, Future Finance: Who to Sue When a Robot Loses Your Fortune.



[xix] 2019: Submission of the claim against bad operation of the robot. Accessed on August 18, 2019.



[xx] Beardsworth, Thomas and Nishant Kumar, Bloomberg, Future Finance: Who to Sue When a Robot Loses Your Fortune.


[xxi] Blythe, Liz and Zoe Sims. The Case of the Robot and the $23 million – Who to sue when things go wrong?  July 5, 2019,



[xxii] 2019: Submission of the claim against bad operation of the robot. Accessed on August 18, 2019.


[xxiii] Id.



[xxiv] Blythe, Liz and Zoe Sims. The Case of the Robot and the $23 million – Who to sue when things go wrong?  July 5, 2019,



June 2019


Lessons Learned in Three Decades as National Coordinating Counsel

By Scott Dickens

Scott Dickens is the managing member of Fultz Maddox Dickens PLC, a 27-lawyer firm with offices in Louisville, Kentucky, and Indianapolis, Indiana. In addition to his role as national coordinating counsel, Mr. Dickens has represented a variety of clients in pharmaceutical, nursing home and assisted living facility, mass tort, insurance coverage, personal injury, property damage, landlord-tenant, and trucking litigation throughout the United States. Mr. Dickens also volunteers weekly in a faith-based reentry program for incarcerated fathers at a state prison. He is a member of the Federation of Defense and Corporate Counsel, DRI, and Trial Attorneys of America.


Click here to view the full article.



February 2018

Submitted by: Jean Faure



MT Supreme Court creates Asbestos Claims Court


(Click here to read the order)


The Montana Supreme Court on November 28, 2017 ordered the creation of an Asbestos Claims Court to resolve hundreds of asbestos-related claims pending in Montana courts.  The Order is based on legislation from the 2001 Legislature which authorized the creation of an Asbestos Claims Court contingent on a determination by the Montana supreme court that, based on decisions reached in the federal bankruptcy proceedings involving W.R. Grace and other circumstances that the court deems advisable to consider, there exists sufficient need to implement the provisions of the Act. The preamble attached to legislation provided:


“WHEREAS, the Legislature finds that there are a large number of asbestos-related claims by Montana citizens that are primarily within the venue of the 19th Judicial District; and


WHEREAS, the large number of asbestos-related claims will impede the ability of the single District Court Judge in the 19th Judicial District to handle the normal case load of the District and will raise several potential conflicts of interest; and


WHEREAS, it is imperative that asbestos-related claims be dealt with expeditiously in order to allow Montana citizens with life-threatening illnesses to receive a speedy resolution of their claims; and


WHEREAS, Article VII, section 1, of the Montana Constitution allows additional courts to be provided by law.”


Despite the focus of the legislation being on the 19th Judicial District (Lincoln County, Montana), the order affects cases filed in any county in the State of Montana.  In what can only be described as forum shopping, Plaintiff’s counsel elected to file all of the asbestos-related claims arising from any Lincoln County commercial activity in Cascade County, Great Falls, Montana, which long has been considered as a plaintiff-friendly forum. 


And although the statutes authorizing the Asbestos Claims Court provide that a civil action involving an asbestos-related claim may be tried by a judge pro tempore or special master, agreed upon in writing by the parties litigant or their attorneys of record, the Court on its own appointed Flathead County District Court Judge Amy Eddy to preside over the all pre-trial proceedings.  The Order suggests that consolidating the cases will allow discovery and settlement discussions to proceed quickly.  Any cases that are not settled will be tried in the Judicial District in which the cases originated. The order requires attorneys representing parties in cases arising from asbestos-related claims to file a notice of appearance with the Asbestos Court by Dec. 28, 2017.  What happens after that point remains to be seen.







Welcome to the 2017-2018 Products Liability Section!  The overall goal for the year is increased engagement of our membership as well as growing our membership.  I am honored to again by the Section Chair and want to introduce you to your Leadership Team, in alphabetical order:

Tiffany Alexander – Vice Chair for Membership --

Drilling down into the goals, and here is where you can get involved, we have identified 5 key areas and one exciting project for the Section.  They are:

  1. Make sure our Section has a column in the monthly newsletter. This is a chance for you to write a short article about something going on with the Section or in the Products Liability universe.  If you are interested in this, please contact Pete Doody.

  2. Grow our in-house section membership both from existing members and by recruiting new FDCC members. And to recruit new private practice attorneys to FDCC.  Tiffany Alexander is heading up this project, and its success relies on each one of us.  We ask that Section members submit as potential FDCC members 1 outside lawyer and 1 industry person to Tiffany, and provide the following information:

  3. Have a meaningful blog post or article monthly, but at the very least every quarter. Teresa Arnold-Simmons is your go to person for this.  In this issue of the Newsletter, Dart Meadows has written a piece on the Hague Convention.  What have you worked on that  you want to share with the Section?
  4. Partner with Toxic Torts and Environmental Law for the Amelia Island program.  Dart Meadows is working with the TTEL Section on this and if you want to be involved, reach out NOW because the clock is ticking.
  5. Work on a developing programs for Maui. Miranda Soto drew this tough duty and I am sure that many folks would love to have a reason to go to Maui.

The exciting project that our Section has been asked to pilot is the use of #Slack ( as the communications platform for the Section.  The Data Breach, Privacy and Cyber Insurance Section has been using it since March as their bulletin board for new developments, introductions, direct messaging and information sharing.  We are going to try to take it up a notch or two.  Two useful articles to get you oriented to Slack are How to Use Slack and Be A Productivity Hero for Your Remote Team and How To Use Slack For Team Communication | Workzone.  Our #Slack community is set up with “Channels” for our members to use to communicate and share on items of general interest as well as for specific practice areas.  So far we have set up Channels for specialty areas Machinery, Medical Devices, Recreational Products, and Automotive. We also have Channels for our members to get involved with Section goals and obligations – Membership, Amelia Island, Maui, LMC, CCS, I3, and blog posts. It is quite easy to get set up by going to the Get Started Page and look for the fdccproductssection channel and start posting! The goal is to reduce “email noise”, create value and increase engagement. We hope to have a webinar on using Slack in the coming months but for now, please just noodle around with it to see if it is something the FDCC should be adopting more broadly.  I will be championing this project and welcome any assistance.

As you can see, there is a lot going on and a lot for you to get involved in. Please reach out to your leadership team on any issue, not just our assigned duties.  We are here to serve you and the FDCC.  Put us to work!

We look forward to a great year.



APRIL 2017

It was a pleasure seeing some of  you at the DRI Products Conference cocktail get together and at the conference generally.  It was even better seeing y’all in Charleston for the Winter meeting.  The attendance at our joint program with the Transportation Section on autonomous vehicles was one of the better attended morning programs (helps being early in the week!) and the feedback was universally positive.  Thanks to all who attended.


I want to also remind everyone to get their Swiss on and be sure to register for the Annual Meeting in Montreux.  Besides being a fantastic location filled with fantastic sites, food, wine and chocolate, it will be yet another opportunity to spend time with FDCC friends and get involved with the Section.  Our Section will be sponsoring a presentation “Emerging Issues in Third-Party Litigation Funding” with Scott Incerto and Dan McGrath leading the program.  The brochure summary should read something like this:


Third-party litigation funding generally means that someone other than party, the party’s counsel, or other entity with a pre-existing contractual relationship with the party (like an indemnitor or liability insurer) provides non-recourse funding for a dispute.  From humble beginnings as a mechanism to pursue (mainly) personal injury claims, litigation funding is now a global growth industry that encompasses multiple funding options for a wide field of civil disputes -  from antitrust to all manner of class actions.  In this program our focus is on the United States, the European Union, the United Kingdom and Canada.  We discuss the basics of third party litigation funding; various funding-related regulatory and legal developments; the impact of litigation funding on defendants; and some of the special issues that arise from its use (e.g., disclosure, privilege; forum shopping). 


Finally, and not to be too blunt, the level of participation in our Section has a lot of room to grow.  There is no reason why this Section should not be leading the way in blogs, newsletters, membership recruitment, speaking and other of the benefits available to members of the FDCC.  If you think you don’t have time to get more involved, you are wrong.  If you think that you are too new to the organization to get involved, you are wrong.  If you think you are too old to get involved, you are wrong. If products isn’t a big part of your practice so you thing why bother getting involved, you are wrong.  Like any aspect of the FDCC, what you put in is multiplied in what you get back.  Please complete this survey to help us better serve you and help us find a way to get you involved: FDCC Products Liability Section Survey.

Have a great Spring!!


Matthew Cairns

Products Liability Section Chair


August 2017 Blog

Effect of Water Splash, Inc. v. Menon, No. 16-254, 2017 WL 2216933 (U.S. May 22, 2017), on Service of Process Upon Foreign Manufacturer


This memorandum addresses the impact of the U.S. Supreme Court’s recent decision in Water Splash, Inc. v. Menon, No. 16-254, 2017 WL 2216933 (U.S. May 22, 2017), on whether compliance with the Hague Convention is required to serve a foreign manufacturer.  This will specifically address an Italian entity.

1.              Impact of Water Splash on Service by Mail


                           Article 10(a) of the Hague Convention states, “[p]rovided the State of designation does not object, the [Hague] Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.”  In Graphic Styles/Styles Int’l LLC v. Men’s Wear Creations, 99 F. Supp. 3d 519 (E.D. Pa. 2015), the court analyzed Article 10(a) and held service of process by registered mail upon a foreign defendant outside the United States is improper under the Hague Convention.  The Graphic Styles court held the drafters’ use of the word “send” instead of “serve” or “service” in Article 10(a) was intentional.  “Service of process refers to a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.”  99 F. Supp. 3d at 523 (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988)).  “Service,” however,


does not refer to subsequent filings in the same action. Having established a highly formalized methodology to ensure that foreign defendants would have timely, effective notice that an action is pending against them, it appears that the drafters wanted to make clear [in Article 10(a)] that the same deliberate, albeit time-consuming, methodology would not also be necessary for subsequent pleadings, once the defendant already had received formal notice of the lawsuit.  Making clear that the method of service the Convention created was only required for the initial service of process and not for later “sending of judicial documents” is not superfluous, it is language that appears to be designed to ensure that parties can process with alacrity the many documents they must exchange during litigation.

Id.  In other words, the court held, the intent of Article 10(a) is that the procedures of the Hague Convention do not have to be utilized for sending subsequent filings in an action to a defendant in a foreign country; compliance with Hague Convention procedures is required, however, to effect initial service of process on a foreign defendant.  See id.

                 This argument was recently expressly rejected by the U.S. Supreme Court in Water Splash, Inc. v. Menon, No. 16-254, 2017 WL 2216933 (U.S. May 22, 2017),[1] in which the Court, resolving a conflict among courts, held Article 10(a)’s phrase “send judicial documents” encompasses sending documents abroad for purposes of service of process.  Article 10(a) accordingly does not prohibit service of process abroad by mail. 

                 The Court held the text and structure of the Convention strongly suggest Article 10(a) pertains to service of documents.  The key word in Article 10(a) – “send” – is a broad term, and there is no apparent reason why it would exclude the transmission of documents for the purpose of service.  The Convention’s preamble and Article 1 limit the scope of the Convention to service of documents abroad, and its full title includes the phrase “Service Abroad.”  “[T]the text of the Convention reveals … the scope of the Convention is limited to service of documents.  In light of that, it would be quite strange if Article 10(a) – apparently alone among the Convention’s provisions – concerned something other than service of documents.”   2017 WL 2216933 at *4.  Since Article 1 already eliminates the possibility that the Convention would apply to any communications that do not culminate in service, “in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service.”  Id. at *5 (emphasis in original).  Suggesting that Article 10(a) applies not to service of process but only to the service of “post-answer judicial documents” lacks any plausible textual footing in Article 10.  See id.


                  The Court found unpersuasive the counterargument that Article 10(a)’s “send judicial documents” should mean something different than “effect service of judicial documents.”  Compelling structural considerations strongly suggest Article 10(a) pertains to service of documents.  And reading the word “send” as a broad concept that includes, but is not limited to, service is more plausible than interpreting the word to exclude service, and it does not create the same superfluity problem.  See id. at *6.


                   The Court further found three extratextual sources support this reading.  One, the Convention’s drafting history strongly suggests the drafters understood service by postal channels was permissible.  See id. at *6-7.  Two, in the 50 years since the Convention was adopted, the Executive Branch has consistently maintained the Hague Service Convention allows service by mail.  See id. at *7.  And three, other signatories to the Convention have consistently adopted this view.  See id. at *7-8.


                   The Court cautioned its conclusion does not mean the Convention affirmatively authorizes service by mail, but “Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not ‘interfere with ... the freedom’ to serve documents through postal channels.”  Id. at *8.  “In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.”  Id.  The Court vacated the judgment of the Texas Court of Appeals, which had concluded the Convention prohibited service by mail outright, and remanded for consideration whether Texas law authorizes the methods of service used by the plaintiff.


                    As to the “two conditions” that must be satisfied in order to effect international service by mail,  first, Italy has not objected to service by mail under Article 10(a).  See, e.g., Blue Underground Inc v. Caputo, CV 14-1343-GW(PJWX), 2014 WL 12573679, at *3 (C.D. Cal. Sept. 8, 2014); Shoham v. Islamic Republic of Iran, 922 F. Supp. 2d 44, 50 (D.D.C. 2013); The Knit With v. Knitting Fever, Inc., No. CIV. A. 08-4221, 2010 WL 2788203, *7 (E.D. Pa. July 13, 2010).


                   Second, service by mail must be “authorized under otherwise-applicable law,” meaning “the law of the state where the action is pending [must] authorize the particular method of service employed.”  The Knit With, 2010 WL 2788203 at *7; see also Valdez v. Takata Corp., No. CV 09-533 LH/DJS, 2010 WL 11505704, at *4 (D.N.M. June 24, 2010) (“Affirmative authorization for such service [abroad by mail], and any requirements as to how it must be accomplished, must come from the law of the forum in which the suit is filed, in this case from the United States’ Federal Rules of Civil Procedure.”); Kita v. Superior Court, No. B239971, 2013 WL 164707, at *6 (Cal. App. Jan. 16, 2013) (validity of plaintiff’s service upon defendant in Japan “by ordinary mail must [be determined by reference to] California law” where case was filed in California state court). 


2.              Authorized Methods for Service Abroad in Cases Filed in Federal Court


                        With regard to cases filed in federal district courts, Federal Rule of Civil Procedure 4(h)(2) provides that a foreign corporation may be served “at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual” (except personal delivery).  Thus, a plaintiff must comply with the requirements of Rule 4(f).  See The Knit With, 2010 WL 2788203 at *4.[2] 


                         Rule 4(f)(1) provides that a foreign corporation may be served abroad “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention ….”  Some courts have held that, because Article 10(a) of the Hague Convention allows for service by mail, to comply with Rule 4(f)(1) a plaintiff may simply send the summons and complaint directly to the defendant by registered mail or private mail delivery service.  See, e.g., Ghostbed, Inc. v. Casper Sleep, Inc., 315 F.R.D. 689, 692 (S.D. Fla. 2016) (granting plaintiff permission to serve defendant in Cayman Islands “via international mail” pursuant to Rule 4(f)(1) and Hague Convention); Zelasko v. Comerio, No. CIV.08-366-MJR, 2008 WL 2755463, at *1 (S.D. Ill. July 14, 2008) (plaintiff’s sending untranslated complaint and summons directly to defendant corporation by “registered certified mail,” rather than through central authority for process in Italy, was proper under Article 10(a) of Hague Convention and Rule 4(f)(1)); Schiffer v. Mazda Motor Corp., 192 F.R.D. 335, 339 (N.D. Ga. 2000) (service of untranslated complaint and summons on Japanese corporation directly by registered mail, without going through central authority, held permissible under Article 10(a) of Hague Convention and Rule 4(f)(1)); EOI Corp. v. Med. Mktg. Ltd., 172 F.R.D. 133, 143 (D.N.J. 1997) (service of summons and complaint via DHL delivery directly to private residence of corporate defendant’s managing director was sufficient to comply with Hague Convention and Rule 4(f)(1)); R. Griggs Group Ltd. v. Filanto SpA, 920 F. Supp. 1100, 1107 (D. Nev. 1996) (mailing of summons and complaint directly to defendant corporation’s president at corporation’s offices in Italy via Federal Express was sufficient service under Hague Convention and Rule 4(f)(1)). 


                       Other courts, however, have held that, because the Hague Convention does not affirmatively authorize service by mail, service by mail is not an “internationally agreed means” of service under Rule 4(f)(1), and a plaintiff must go through the foreign country’s central authority to serve a defendant abroad under Rule 4(f)(1).  See Brockmeyer v. May, 383 F.3d 798, 804 (9th Cir. 2004); In re Coudert Bros. LLP, No. 16-CV-8237 (KMK), 2017 WL 1944162, at *8 (S.D.N.Y. May 10, 2017) (“because service via mail on a defendant residing in a country that is a signatory to the Hague Convention is not … an ‘internationally agreed means of service,’ Rule 4(f)(1) cannot serve as the basis for service of process” by registered mail).


                       But other provisions of Rule 4(f) do appear to authorize serving a defendant abroad by registered mail.  See Brockmeyer, 383 F.3d at 804-07; The Knit With, 2010 WL 2788203 at *8.  First, Rule 4(f)(2)(C)(ii) authorizes service by “using any form of mail that the clerk [of the federal district court in which the action is pending] addresses and sends to the [defendant] and that requires a signed receipt.”  See Brockmeyer, 383 F.3d at 808 (“Service by international mail is affirmatively authorized by Rule 4(f)(2)(C)(ii), which requires that service be sent by the clerk of the court, using a form of mail requiring a signed receipt.”); Ghostbed, Inc., 315 F.R.D. at 693 (approving of service via international mail under Rule 4(f)(2) and directing plaintiffs to deliver documents to clerk’s office for service); Ballard v. Tyco Int’l, Ltd., No. CIV. 04-CV-1336-PB, 2005 WL 1863492, at *4 (D.N.H. Aug. 4, 2005) (service abroad by mail is authorized only if done by clerk of federal district court in which suit is filed); cf. The Knit With, 2010 WL 2788203 at *8, 11 (plaintiff’s counsel’s serving corporate defendant by Federal Express directly to Italy was ineffective under either Hague Convention or Rule 4(f)).


                       Second, Rule 4(f)(3) allows service “by other means not prohibited by international agreement, as the court orders.”  See Brockmeyer, 383 F.3d at 808-09 (“Service by international mail is also affirmatively authorized by Rule 4(f)(3), which requires that the mailing procedure have been specifically directed by the district court.”).  This means of service requires prior authorization from the court in which the action was filed.


                      Third, Rule 4(f)(2)(A) allows service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.”  See Brockmeyer, 383 F.3d at 808.  The U.S. Department of State lists the following as the conditions for service of process in Italy:


Requests [for service of process of U.S. documents in Italy] should be completed in duplicate and submitted with two sets of the documents to be served, and translations, directly to Italy’s Central Authority for the Hague Service Convention. … The Italian Central Authority has informed the Hague Conference for Private International Law that only judicial officers working for the Italian courts may serve documents in Italy (Article 10(b and c)).  Private attorneys or individuals are not authorized to effect service in Italy.  International service of process by registered mail is allowed in Italy, but this method will only record delivery to an address and not to a person.; see also The Knit With, 2010 WL 2788203 at *9. 


                      Accordingly, it appears service by registered mail is generally considered a proper means of serving a foreign defendant abroad.  But whether a plaintiff may send the complaint and summons directly to the defendant or is required to have the clerk of court do so will depend on the jurisdiction in which the particular action is filed.  A foreign entity should look to the forum court’s precedents and interpretations of Rule 4(f) and the Hague Convention to determine whether the plaintiff has properly served them.


3.              Authorized Methods for Service Abroad in Cases Filed in State Court


                         Each state has its own set of procedural rules that set forth the proper methods of service of complaints filed in the state’s courts.  In the event the foreign entity is sued in state court, they should look to the particular state’s courts’ interpretations of its procedural rules governing service to determine whether the plaintiff has properly effectuated service.


                         In Georgia, for instance, O.C.G.A. § 9-11-4(f)(3) is very similar to Federal Rule of Civil Procedure 4(f) and authorizes various means by which “service upon persons in a foreign country” may be effected.  O.C.G.A. § 9-11-4(f)(3)(A) authorizes service of process on a person in a foreign country “[b]y any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention ….”  Under O.C.G.A. § 9-11-4(f)(3)(B)(iii)(II), such service may be made by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court in which the action has been filed to the party to be served.  O.C.G.A. § 9-11-4(f)(3)(C) authorizes such service “[b]y other means not prohibited by international agreement as may be directed by the court.”  And O.C.G.A. § 9-11-4(f)(3)(B)(i) authorizes service “[i]n the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction.” 


                         While there do not appear to be any Georgia cases directly addressing the question, it is doubtful service may be effected upon persons in a foreign country by regular first-class mail.  O.C.G.A. § 9-11-4(f)(3) does not authorize such service and, because it is patterned after Federal Rule of Civil Procedure 4(f), federal cases barring service abroad by regular first-class mail will be persuasive in arguing against the propriety of such service under O.C.G.A. § 9-11-4(f)(3) in Georgia state court actions.


                          In addition, as an alternate method of serving a corporation, O.C.G.A. § 14-2-504(b) provides that, if a corporation has no registered agent in Georgia, “the corporation may be served by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to the secretary of the corporation at its principal office.”  See Rovema Verpackungsmaschinen v. Deloach, 232 Ga. App. 212, 214 (1998) (plaintiffs could have served German corporate defendant, which had no agent for service of process in Georgia, in Germany pursuant to Hague Convention or any other acceptable means under Georgia law, including serving German defendant’s registered agent or corporate secretary at its principal office pursuant to OCGA § 14-2-504).  Under the court’s holding in Deloach, it appears service upon a corporation in a foreign country may be effected by registered mail.


                          If a foreign corporation is not registered to do business in Georgia but is subject to Georgia’s long-arm jurisdiction, it “may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the … country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.”  O.C.G.A. § 9-10-94; see also Deloach, 232 Ga. App. at 213.


[1] The Water Splash case originated in the Texas state court system.

[2] It appears generally accepted that service by regular first-class mail is ineffective.  See, e.g., Brockmeyer v. May, 383 F.3d 798, 804 (9th Cir. 2004) (“no part of Rule 4(f) authorizes service by ordinary international first class mail”); Ballard v. Tyco Int’l, Ltd., No. CIV.A.04-1336, 2005 WL 1863492, at *1 (D.N.H. Aug. 4, 2005) (plaintiffs’ mailing copy of summons and complaint by regular mail directly to defendant’s place of business in London ineffective under Rule 4(f)).  

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