NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

No. 22-2497 

______________ 

SECURITIES & EXCHANGE COMMISSION 

v. 

TODD LAHR; THOMAS MEGAS 

 Thomas Megas, 

Appellant 

______________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil No. 5:20-cv-01593) 

U.S. District Judge: Honorable Edward G. Smith 

______________ 

Argued July 8, 2024 

______________ 

Before: SHWARTZ, PHIPPS, and MONTGOMERY-REEVES, Circuit Judges. 

(Filed: July 24, 2024 ) 

______________ 

OPINION*

______________ 

Jeffrey A. Berger 

Matthew F. Scarlato 

Stephen Silverman [ARGUED] 

*

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent. 
2 

United States Securities & Exchange Commission 

100 F Street NE 

Washington, DC 20549 

 Counsel for Appellees 

James S. Ballenger 

Ben Buell [ARGUED] 

Jonathan Duval [ARGUED] 

University of Virginia School of Law

580 Massie Road 

Charlottesville, VA 22903 

Catherine E. Stetson 

Hogan Lovells US 

555 Thirteenth Street NW 

Columbia Square

Washington, DC 20004 

 Court Appointed Amicus Curiae1

 

SHWARTZ, Circuit Judge. 

 Thomas Megas appeals the District Court’s order denying his motion to vacate the 

default judgment entered against him. For the reasons set forth below, we will vacate

that order, as well as the entry of default and default judgment. 

I 

A 

The Securities and Exchange Commission (“SEC”) filed a complaint against 

Megas and his co-defendant, Todd Lahr, for violating the federal securities laws.2

 The 

SEC believed that Megas resided in Switzerland and, in April 2020, asked the Swiss 

1

 The Court thanks amicus counsel for their helpful briefing and excellent oral 

argument. 

2

 The claims against the co-defendant were resolved via a consent judgment. 
3 

Central Authority to serve him with the complaint pursuant to the Convention on Service 

Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the 

“Convention”).3

 Approximately three weeks later, Swiss authorities informed the SEC 

that (1) local police confirmed that Megas was legally domiciled at the address where 

service was attempted, (2) their efforts to serve him were unsuccessful because he was 

out of the country until the end of August, and (3) they would reattempt service in 

September.

The District Court granted the SEC three extensions to serve Megas because Swiss 

authorities did not find Megas at the address. In late October 2020, the SEC enlisted the 

Swiss Financial Market Supervisory Authority (“FINMA”) to help locate 

Megas. FINMA confirmed that Megas was domiciled at the Swiss address where service 

was attempted but could not obtain his travel records.4

 The SEC then attempted to 

contact Megas by email on October 27, 2020, using only one of the several email 

addresses that it uncovered during its investigation. The SEC sent the email using RPost, 

a “technology platform . . . that provides proof of delivery and read receipts if the 

recipient opens the email.” SA 175.5

 RPost confirmed that the email was delivered but 

3

 The Convention is an international agreement that governs service of process 

abroad. See Convention on the Service Abroad of Judicial and Extrajudicial Documents 

in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 

(hereinafter cited as “Hague Service Convention”). 

4

 The U.S. Department of Homeland Security and co-defendant Lahr were also 

unable to provide information about Megas’s travels. 

5 We refer to the SEC’s appendix as “SA__” and Amicus Curiae’s appendix as 

“JA__”. 
4

not opened. The SEC also learned via internet searches that Megas was a current or 

former director of four companies with physical addresses in the United Kingdom. 

Based on that information, the SEC filed another motion, this time requesting that 

the District Court (1) hold that the Convention did not apply because the unsuccessful 

efforts to serve Megas at the Swiss address made it unlikely that he still resided there, (2) 

authorize alternative service via email under Federal Rule of Civil Procedure 4(f)(3), and 

(3) extend the deadline to enable the SEC to attempt service at one of the UK addresses 

under Rule 4(f)(2)(C)(ii). The District Court granted the request for permission to serve 

by email and extended the service deadline to May 28, 2021. 

The service attempts in the United Kingdom were unsuccessful. The SEC then 

attempted to serve Megas by email,

6 and it received the following: 

AUTOMATED RESPONSE. It has not been possible to deliver your 

message to [Megas’s Hotmail address] as the email address does not appear 

to be in use. 

JA 99. RPost showed that the email was delivered, but not opened. 

B

Despite having failed to effectuate service at a physical address or adduce proof 

that Megas opened the emails the SEC sent to him, the SEC requested the entry of

default, which the clerk entered. Thereafter, the District Court granted the SEC’s motion 

6 The email attached the summons, complaint, and District Court’s order granting 

alternative service. 
5 

for default judgment7 and entered a final judgment against Megas for more than 

$500,000. Six days later, Megas moved pro se to vacate the judgment as void for lack of 

jurisdiction and improper service under the Convention, pursuant to Federal Rules of 

Civil Procedure 60(b)(3) and 60(b)(4). After a telephonic evidentiary hearing and oral 

argument, the Court denied Megas’s motion. Sec. & Exch. Comm’n v. Lahr, No. 20-cv1593, 2022 WL 2828846 (E.D. Pa. July 20, 2022). As to service, the Court concluded, in 

relevant part, that no “jurisdictional error” or “violation of due process” rendered the 

judgment void under Rule 60(b)(4), reasoning that (1) the requirements for foreign 

service under the Convention do not apply where the person’s address is not known, id. at 

*7, (2) the factual record permitted alternative service by email in light of the SEC’s 

futile attempts to serve, id., and (3) Megas had notice of the litigation for approximately 

one year before the default judgment was entered, id. at *8. As to personal jurisdiction, 

7

 In its motion for default judgment, the SEC represented that the automated 

response was “user-generated” and that such response indicated that Megas “had 

accessed his email account” between the time the October 2020 and February 2021 

emails were sent. This representation was based on formatting differences between the 

automated response from Megas’s email address and an automated response from a 

different Hotmail address known to be inactive. 
6 

the Court concluded that Megas had sufficient contacts with the United States to put him 

on notice that he could be involved in litigation here. Id. at *4. 

 Megas appeals.

II8

The United States and Switzerland are parties to the Convention, a treaty intended 

“to simplify, standardize, and generally improve the process of serving documents 

abroad.” Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017). The Convention 

requires that each contracting “state” (i.e., country) designate a central authority to 

receive requests for service, serve the documents consistent with its own law, and return a 

certificate of service to the requesting party.9

 Volkswagenwerk Aktiengesellschaft v. 

Schlunk, 486 U.S. 694, 698-99 (1988); Hague Service Convention arts. 2-6. 

“Submitting a request to a central authority is not, however, the only method of 

service approved by the Convention.” Water Splash, 581 U.S. at 275. The Convention 

8

 The District Court had jurisdiction pursuant to 15 U.S.C. §§ 77t(b)-(d), 77v(a), 

78u(d),(e) and 78aa(a), and 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 

U.S.C. § 1291. We exercise plenary review over an order denying a Rule 60(b)(4) 

motion and review all other orders denying relief under Rule 60(b) for abuse of 

discretion. Budget Blinds, Inc. v. White, 536 F.3d 244, 251 & n.5 (3d Cir. 2008) 

(internal citations omitted). Under Rule 60(b)(4), the court may relieve a party from a 

final judgment if the judgment is void. Fed. R. Civ. P. 60(b)(4). “A default judgment 

entered when there has been no proper service of the complaint is, a fortiori, void, and 

should be set aside.” Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 

1985). The Court need not reach the merits of Megas’s Rule 60(b)(3) argument given the 

Court’s determination that the District Court’s judgment is void. 

9

 Federal Rule of Civil Procedure 4(f) accounts for the Convention and its 

exceptions by: (1) allowing for service by any “internationally agreed means of service 

that is reasonably calculated to give notice, such as those authorized by the [] 

Convention[,]” Fed. R. Civ. P. 4(f)(1); (2) permitting a plaintiff to resort to “a method 
7 

also provides for (1) alternative methods of service, which are permitted methods unless a 

country has objected to them; and (2) “derogatory” methods of service, which are 

methods that a country decides to agree to, either bilaterally or unilaterally.10 For 

example, Article 10 of the Convention authorizes certain alternative methods of service, 

such as service through “postal channels,” so long as a receiving state does not object to 

them. See Hague Service Convention art. 10(a). Additionally, Articles 11 and 19 permit 

contracting states to consent, either with other contracting states or unilaterally, to 

methods of service from abroad not expressly authorized by the Convention.11 See

Hague Service Convention arts. 11, 19. Thus, the Convention “specifies certain approved 

methods of service and pre-empts inconsistent methods of service wherever it applies.” 

Water Splash, 581 U.S. at 273 (internal quotation marks and citation omitted); see also 

Permanent Bureau of the Hague Conference of Private International Law, Practical 

Handbook on the Operation of the Service Convention, 21 ¶ 50 (2016) (“Practical 

that is reasonably calculated to give notice” “if there is no internationally agreed means, 

or if an international agreement allows but does not specify other means[,]” Fed. R. Civ. 

P. 4(f)(2); and (3) authorizing a court to approve other methods of service “not prohibited 

by international agreement,” Fed. R. Civ. P. 4(f)(3).

10 The Practical Handbook on the Operation of the Service Convention refers to the 

methods of service that “deviate from [the Convention’s] main and alternative 

[methods]” as “derogatory” methods of service. Permanent Bureau of the Hague 

Conference of Private International Law, Practical Handbook on the Operation of the 

Service Convention (“Practical Handbook”) 96 ¶ 294 (2016). The Practical Handbook is 

published by the Hague Conference on Private International Law and is a “tool for 

courts” and parties to reach a common understanding of the Convention and its “channels 

of transmission.” Practical Handbook at IX. 

11 There is no evidence that Switzerland has agreed to additional methods of 

service with the United States, or pursuant to its own domestic law under Articles 11 and 

19, respectively. Id. 
8 

Handbook”) (explaining that the Convention is “exclusive,” and “provides the relevant 

catalogue of possible means of transmission for service abroad.”).12 

A 

Although “compliance with the Convention is mandatory in all cases to which it 

applies,” Schlunk, 486 U.S. at 705, the Convention does not apply “where the address of 

the person to be served with the document is not known.” Hague Service Convention art. 

1. 

The SEC contends that its reasonably diligent but unsuccessful efforts to serve 

Megas at the address associated with him rendered this address not known. Courts have 

different views concerning the “reasonable diligence” test. Some courts employ a 

“reasonable diligence” test that examines whether a plaintiff engaged in reasonably 

diligent efforts to discover a defendant’s address.13 The SEC cites one case that employs 

12 Additionally, this reading comports with the views of the Convention’s 

signatories. Water Splash, 581 U.S. at 282. In 2009, the Special Commission on the 

practical operation of the Service Convention, which is comprised of signatory 

representatives, unanimously adopted the view that the Convention is “of a nonmandatory but exclusive character.” Hague Conference on Private International Law, 

Conclusions and Recommendations of the Special Commission on the Practical 

Operation of the Hague Apostille, Service, Taking of Evidence and Access to Justice 

Conventions, ¶ 12 (2009), https://assets.hcch.net/docs/5bf65314-4f55-42b5-9b0c770f2bfccd37.pdf. The Department of Justice also advises that “[i]f the Convention 

applies, parties cannot agree or stipulate to a method of service that the Convention 

neither authorizes nor permits and a party in the U.S. should not utilize a method of 

service that to which the state of destination has objected.” Office of International 

Judicial Assistance Guidance on Service Abroad in U.S. Litigation, at 4-5 

https://www.justice.gov/civil/page/file/1064896/download (Oct. 1, 2018).

13 See, e.g., Smart Study Co. v. Acuteye-Us, 620 F. Supp. 3d 1382, 1390-91 

(S.D.N.Y. 2022) (“Courts in this Circuit have found that an address is not known if the 

plaintiff exercised reasonable diligence in attempting to discover a physical address for 
9 

a different “reasonable diligence” test, which focuses on a plaintiff’s diligence in 

attempting to serve a defendant at a known address.14 The latter approach does not 

comport with the Convention’s text. See Hague Service Convention art. 1 (providing that 

the Convention does “not apply where the address of the person to be served with the 

document is not known.”). Nor is it consistent with the Convention’s structure, as the 

Convention has provisions for dealing with a defendant who intentionally evades service. 

See, e.g., Hague Service Convention arts. 5 (allowing the applicant to request that the 

service of process and was unsuccessful in doing so.” (internal quotation marks and 

citation omitted)); Kelly Toys Holdings, LLC. v. Top Dep’t Store, No. 22-cv-558, 2022 

WL 3701216, at *7 (S.D.N.Y. Aug. 26, 2022) (the “inability of [the plaintiff’s reasonably 

diligent] efforts to identify [the defendants’ physical] addresses made [them] ‘not known’ 

for [] purposes of the Hague Convention”); Sunline USA LLC v. Ezzi Grp., Inc., No. 22-

1650, 2022 WL 3691021, at *24 n.2 (E.D. Pa. Aug. 25, 2022) (the defendant’s address 

was not known because the previously known address was occupied by a new tenant and 

efforts to locate an updated address for the defendant were unsuccessful); Rubie’s 

Costume Co., Inc. v. Yiwu Hua Hao Toys Co., No. 18-cv-01530, 2019 WL 6310564, at 

*3 (W.D. Wash. Nov. 25, 2019) (authorizing alternative service as to the defendants for 

whom “[p]laintiff has been unable to ascertain physical addresses for” and declining to 

authorize alternative service as to the defendants for whom “[p]laintiff has identified 

physical addresses”); UnderSea Recovery Corp. v. Madero Holding, S.A. de C.V., No. 

19-cv-00286, 2020 WL 13544376, at *3 (N.D. Ga. May 19, 2020) (“[A]n address is not 

known within Article I of the Convention only when it is unknown to the plaintiff after 

the plaintiff exercised reasonable diligence in attempting to discover that address.” 

(internal citation and quotation marks omitted)); Luxottica Grp. S.p.A. v. P’artnerships & 

Unincorporated Ass’ns Identified on Schedule “A”, 391 F. Supp. 3d 816, 822 (N.D. Ill. 

2019) (granting motion to dismiss for improper service under the Convention because 

there was no indication that reasonably diligent efforts were employed to determine the 

defendants’ physical addresses such that they should be considered “not known” for 

purposes of the Convention). 

14 See Backjoy Orthotics, LLC v. Forvic Int’l Inc., No. 14-cv-249, 2016 WL 

7664290 (M.D. Fla. Mar. 7, 2016). There, the district court’s articulation of the 

“reasonable diligence” test appears to stem from concerns about a defendant’s ability to 

evade service. While such concerns are valid, they do not permit us to circumvent the 

text of the Convention, which, as discussed herein, prescribes ways to address a person 

who tries to evade service. 
10 

Central Authority serve a document by a particular method, as long as that method is not 

“incompatible with the law of the State addressed”),15 14 (providing that “[d]ifficulties 

which may arise in connection with the transmission of judicial documents for service 

shall be settled through diplomatic channels”), 15 (providing for entry of default). Thus, 

the Convention contemplates a difference between situations where the defendant’s 

address is not known and the defendant’s whereabouts are not known. In only the 

former, the Convention does not apply. 

Here, the Swiss Central Authority’s failed service efforts do not render Megas’s 

address “not known” for purposes of the Convention. To the contrary, its 

communications confirmed the accuracy of Megas’s address, even though efforts to serve 

him at that address were unsuccessful. See SA 84 (Swiss authorities confirming that 

Megas “is legally domiciled at” the address); JA 92 (FINMA confirming that the address 

on record is Megas’s last known address and that “competent authorities have confirmed 

that [Megas] is currently still registered at this address”); cf. Practical Handbook 189 ¶ 68 

(noting that “[t]he Convention is exclusive and [service] time delays are not a sufficient 

reason to circumvent the Convention”). Accordingly, Megas’s address was known, and 

the District Court erred in concluding otherwise. 

15 For instance, Article 141 of the Swiss Civil Procedure Code permits authorities 

to proceed with service by public notice when “the whereabouts of the addressee are 

unknown and cannot be ascertained despite making reasonable enquiries” or “service is 

impossible or would lead to exceptional inconvenience.” Swiss Civil Procedure Code, 

Dec. 19, 2008, SR 272, art. 141 (Switz.). 
11 

B 

Because Megas’s address was known, the Convention applied, so we consider 

whether the email service here was proper under the Convention and conclude that it was 

not. As we explained, the Convention prescribes the means for service abroad. Thus, for 

email service to be permitted in Switzerland, it must be authorized by the Convention’s 

terms. Here, (1) the Convention does not expressly provide for service by email, (2) 

there is no evidence that the United States and Switzerland have consented to email 

service under Article 11, and (3) email service under Swiss law is permitted only if the 

served party consents, and there is no evidence that Megas consented.16 Thus, email 

service upon Megas in Switzerland was not permitted under the Convention.17 

Because Megas was not properly served, the District Court erred in declining to 

grant the motion to vacate the entry of default and default judgment. See Gold Kist, Inc. 

16 Even if he had, the email service would have needed to be effectuated through 

the Article 5 process, rather than by the SEC itself. See Hague Convention art. 5; see 

also Swiss Civil Procedure Code, Dec. 19, 2008, SR 272, as amended by Annex No II 5 

of the FA, Mar. 18, 2016, AS 2016 4651; BBI 2014 1001 (2017), art. 139 (Switz.) 

(providing for electronic service in domestic settings only “[w]ith the consent of the 

person concerned,” and if other requirements, aimed at ensuring email transmissions are 

secure and reach their intended recipient, are satisfied); cf. Practical Handbook 194-95 ¶¶ 

79-82 (discussing such requirements). The SEC conceded that Swiss law limits the use 

of email service. 

17 Some courts have considered whether Article 10(a)’s provision for service by 

“postal channels” encompasses service by electronic means. See, e.g., Prem Sales, LLC 

v. Guangdong Chigo Heating & Ventilation Equip. Co., 494 F. Supp. 3d 404, 414-15 

(N.D. Tex. 2020) (collecting cases). Here, Switzerland has objected to Article 10(a), so 

we need not address whether Article 10(a)’s use of the phrase “postal channel” includes 

email service. Declaration/reservation/notification, Hague Conference on Private 

International Law, https://hcch.net/en/instruments/conventions/statustable/notifications/?csid=424&disp=resdn [https://perma.cc/JN32-EF6Z]. 
12 

v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985) (“A default judgment entered when 

there has been no proper service of the complaint is, a fortiori, void, and should be set 

aside.” (emphases omitted) (citing Fed. R. Civ. P. 60(b)(4)). 

III 

For these reasons, we will vacate (1) the order denying the motion to vacate 

default judgment, and (2) the entry of default and default judgment.18

18 We leave to the District Court to determine whether the time for service abroad 

should be further extended. Service is a prerequisite for exercising personal jurisdiction. 

Cf. Fischer v. Fed. Express Corp., 42 F.4th 366, 381 (3d Cir. 2022) (“For a court to 

exercise personal jurisdiction over a defendant, the defendant must be served process, 

alerting the defendant to the pendency of the suit and the nature of the claims against 

her.”); Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before 

a federal court may exercise personal jurisdiction over a defendant, the procedural 

requirement of service of summons must be satisfied.”).