is that here the hague a service convention applied and that it is mandatory what that means is that when the convention applies you have to use one of the methods of service that it permits the only provision of the convention that even arguably could permit service by email is article ten a this is the provision on postal service if you are going to analogize email to the post but india the relevant country here has objected to all service under article ten therefore the email service that status in goldberg made was prohibited by the convention and it was an error for the district court to authorize it direction just a ma no your honor so it's implicit in yeah well it's implicit in the district court's decision that he was in india that he resigned in india and the reason extend some time to serve him again in pittsburgh with this new lawsuit and there we go we're off why do you object i don't object to remain and necessarily for jurisdictional purposes although we do think that here there is a judicial a stoppel that applies say this in goldberg successfully persuaded the court that mr bannard you lived in india and the reason we know that is because rule four f three which is the rule that they used to get permission to serve by email only applies to service outside of the united states part of this because his mother when she got service at all you know he lives here and then later on said oh no i was wrong he didn't he doesn't live here sadist and goldberg affirmatively pleaded in the second action that he lived in india and you might ask a question well you know the first action was dismissed because sadists had failed to plead its own its own citizenship and in the first action saved and goldberg did what one would do given what its theory is the theory that mr bennett is a liar that he actually lived in the united states so what did they do they served him at his wife's thousand pennsylvania which would be perfectly good service if in fact what they say is true the problem here is that once that case was dismissed they didn't do that again instead they said we want to save some time i suppose we just want to serve him by e mail so we're going to affirmatively represent to the court that he lives in india so you know i think it's not really right to say here as far as where your client's relatives were saying he live mr bannister himself has had a consistent position throughout the case he has given the same address right right so let's distinguish the jurisdictional issue which i understand there's an issue about was there subject matter jurisdiction at all what i don't want to have happen is for remained on that issue without the court deciding the issue about service if you're going to remain and say we're going to give another attempt to serve that's fine but i think what's what's what would not be good would be to remain and without deciding the service issue and just have the case proceed and then have another appeal in a couple years  affected service then we're just going to be here in two years if what you're saying is we're going to remind it they're going to serve it again perhaps serving on counsel whenever his wife does still live in pittsburgh my problem with not allow email service that is fair on her but i will say that this is an issue that recurs frequently and yet very rarely makes it to an appellate court case in which we deal with this only after judgment is entered by a party comes that ours is the best deciding i actually think you're on a this is a very good case for deciding it and the reason is because it's just very rare to have a to defend a particular pro se defendant actually preserve the issue raise it on appeal i don't know of any other case where that's happened where does he live today he  court yeah i believe he's living now in the united states and i would simply say i haven't been retained to do the case in the district court but it's you know i would not advise him  if you're sending it back to serve again that's fine because all he wants is to litigate it on the merits but i do want to address them again if the only point i want to raise your honor it's important to understand that when we say the convention is mandatory what we mean is not that if it's it's not that whatever is not for prohibited is permitted it's that only the things that are permitted are permitted and if it's not in there it's prohibited that's the point that's the mistake that the lower courts that have ruled on this issue have made they've all said well it doesn't say anything about email therefore it's ok i would just encourage you to look at what the supreme court said in the aerospace case where very specifically said the hague service convention unlike some other treaties is mandatory in the sense that it's not just an optional extra method when it applies you have to use it this is not an appeal and we are the defendant mr barrett he is arguing that he never had actual notice the judge the judge ruled that he was served in compliance with due process he didn't appeal actual notice so the burden of proof rests on mr b demonstrate that he wasn't properly served role i believe that the record that the court has is sufficient to find domicile in the united states for two reasons first we've put in within the record at the district court level when we discovered that somewhat later in the case but when we discovered that he was actually in pittsburgh and that he and his wife had built a home there we so the language of the district court was that he had the courts had said that the mr banty's family had tried to stymie service and that we the attempts have been made  service within have to be valid under rule four which allows service in line with state law in this case new york law which allows service after when it's impracticable when a court makes a finding of impact ability to allow service by e mail and allows service by e mail now the e mail was sent to g mail wherever he may be and the truth is although we believe that the evidence shows that he was domiciled in pennsylvania and had previously been domiciled in connecticut and there is no sufficient evidence to everywhere and and fact google host at the time had it's supposed to be a service in the united states it still does a nun in india but we sent it to g mail and we also sent it to the indian address where we had been told by his family that d it certainly would have it would have been helpful and i it's understandable the district court sorry we did not ask the district court to do that we did put in the evidence as to his current place that's certainly true it would have it would have been helpful had it had a district the reality is that even if he had been domiciled in the united states had he been in india at the time rule for three would still apply and so the service by e mail the beauty of service by email is that it allows yes but i think i believe that it is the it's quite simple it's not that complicated because the counter claim that mr baron g filed is his own counter claim that he filed in pittsburgh where he declared that it was his home he put his own address down as being in living with his mother or some relative in india we believe that is what happened it was a residence not a domicile but when you build a home in there the case law supports us that when you get the question is a question of fact if you build a home together with your wife and children that is as great a evidence of do service that ordered by e mail is also valid under rule for each and the court's finding that there was an attempt to serve him and that it was impracticable because this family was trying to stymie service that same finding that it found with respect to rule four f applies multiple issues with respect to rule for three and then it that my opponent didn't raise which is that the advisory committee notes under rule four f three lay out how  the writers of that rule understood the hague service convention to operate and they understood that one tries through the central authority in the first instance and where that attempt fails which occurred over here then the rule for  exists for situations where you could provide service by means not prohibited by the hague service convention but not prohibited not prohibited by the by the hague service mention but also not specifically provided for and according to mr folkman there is no such situation that's a null set because anything that's not provided for explicitly in the agreement is excluded by the same agreement so the rule for f three as it's set up with the first rule for if for if one being providing service through the hc service you mention and then rule for three being a situation where you can serve where there's no prohibition after attempting through the hc service convention that whole structure of the rule and the advisory committee the voters the recommitting notes demonstrate that the hague service commission does not prohibit everything that's not written it there's no provision in the hague service commission that says anything not any service not explicitly laid out here in is here by prohibited forever that's not there and what's some one thing that we only discovered in preparing for this oral argument and perhaps we should have realized that earlier in a footnote in a in a footnote mr baron g said that that's only when it allows service coming from abroad and that question of what how to interpret that part of the  service dimension is open it hasn't been decided by this court other courts have felt have held that if you don't let anything within internal laws we don't differentiate between coming from abroad or not but more importantly the burden resides on mr badger to show or doesn't allow it and article fifteen of the of the hague service convention in dealing with judgments leaves out the coming from abroad language the a problem in which that was cited an article nineteen and so on and when it comes to trying to avoid a default judgment it's article fifteen  and if in fact he's done this i was the united states and were once to rely on or and the services provided it can deny the motion to vacate judgment on the other hand after seeing evidence that the district court concludes that it's domicile at the relevant time was india it might have to conclude it lacked jurisdiction at that point he would then decide whether you would be able to serve him because his counsel now represents to us he's now a he's now domiciled in the united states but doesn't that at least clean up this your honor this case has been going on for almost nine years now mr bangi is owed has owed his his fees i know that it only takes one there are really two things one is his affidavit and the second is the complaint itself which we cite a case for the proposition is a binding his foot but he's put forward his effort that's correct now in our in our motion papers on the motion to remain and we've made representations about what we could put forward if there were remained and that includes leases that includes a separation agreement from his wife in two thousand and twelve that includes other documentation that's correct it's a legit that's that's right it's an issue that is fair to litigate that's right but it was not litigated below that's that's absolutely correct i just want to leave you with two points your honor the first you asked a question judg source what service are you relying on if you're not relying on the service in india my yes or here yes so what he says about that is that section three zero eight five of the are would have authorized service by e mail because service was impracticable but we know that that's not true because if if as he now says mr ban if you lived in pittsburgh which is what they claim then they could have done exactly what they did in the first good because he didn't live in india and he lived in pittsburgh they took no steps to serve him in pittsburgh which the easily could have done you're saying though that they could serve given all the rigmarole they got runaround that if he was living in pittsburgh they could serve  by email given everything that happened your answer to that is what my answer to that is is that's incorrect because if you lived in pittsburgh they had very easy and practical methods to serve and so rule three three zero eight five doesn't apply thank you