The Coloseum.
The Colosseum.

The Hague Law Blog isn’t just about nuts & bolts lawyering.  A bit of a deviation today… with an offer you can’t refuse.  At least, not if you like to travel and fulfill your licensure requirements at the same time.

In Missouri and Kansas (and, I’m sure other jurisdictions), this is Continuing Legal Education Crunch Time.  Our credit year ends next Friday, June 30th (with reports due July 31st), and lawyers across both states are scrambling for hours.  They needn’t stress, really, because a cottage industry has been set up around the year-end rush; the CLE office at my alma mater, UMKC Law,* not only offers a host of live programs throughout May and June every year, but webinar and web replays as well.  (See here for the full range.)

But why stress about it at the end of the reporting year?

Why scramble?

Why not get a full year’s CLE hours and see the world at the same time?

Join us in Italy this November.

Peggy and me in Venice during UMKC's 2015 Rome CLE. Did I mention the free days in the middle?
Peggy and me in Venice during UMKC’s 2015 Rome CLE. Did I mention the free days in the middle?

Seriously.  CLE Abroad is the best possible way to do it.  In the morning, a few hours of classes and court visits, led by American and Italian practitioners and scholars, and in the afternoon, a few hours of ruins, museums, and the best cuisine Italy has to offer.

I’m not joking.  This really is the best way to get your hours (I even give a live-version lecture of topics from this blog), see the world, and save a few bucks** in the process.

See program details here.  (And then email Peggy to sign up.)

Vieni e unisciti a noi, amici.


* Full disclosure:  my wife is a professional program coordinator at UMKC’s CLE office, and I worked there during law school (and that first excruciating year after).  This plug is not only shameless, it’s issued with pride.  I wouldn’t be where I am today without having had the opportunity to work there, and I get the good fortune of traveling every year because of it.
** Group travel rates keep the price tag down, of course.  And the question always comes up: “can I deduct this?”  My answer:  “I don’t know.  Ask your tax guys.”

Public beach below 'Quai des États-Unis' in Nice, French Riviera. Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)
Public beach below ‘Quai des États-Unis‘ (how’s that for irony?), Nice, France.  Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)

(Hint: foreign holidays trump the judge.)

The prevailing rule: a plaintiff’s lawyer has to get things done in a timely manner (ie: yesterday) or the court gets irritated.  The judge wants a brief before she goes to bed.  The clerk’s office reminds you that they’re closing early in honor of Truman’s birthday tomorrow (in Missouri, we’re just wild about Harry).  It’s on you, counsel, to make sure things get executed in a timely manner, or your case gets kicked to the curb.  But when you’re serving a defendant overseas, you can’t always do that.

Now, it can sometimes be done quickly and under pretty odd circumstances.  My guys in London served a defendant in the midst of massive congestion six blocks from the London apartment building fire last Wednesday—as the event unfolded.  Once in a while, speed is possible, but it can almost only happen quickly in (1) other common law jurisdictions that (2) don’t prohibit the use of a private process server.  Throughout most of the civil law world, service can only be effected by a judicial officer pursuant to a request to a Hague Central Authority.  And depending on where that Central Authority finds itself, service could take weeks, months, even a year or more.  (<– That is not a typo.)

Judge Haller has zero tolerance for your crap.
Judge Haller has zero tolerance for your crap, Mr. Gambini.  He is not a jolly fellow.

To make matters worse, certain holiday seasons extend the wait even more.  Several come to mind, and they can really delay things, even more than the timetable that would normally frustrate the judge.

A little one and three big ones:

(1) The bank holiday

Occasionally, the United Kingdom and other members of the Commonwealth shut down their banking systems and tell the financiers to take a day off, Nigel– the money needs a moment to breathe.  To be sure, bank holidays are a thinly-veiled strategy to maintain religious holidays (Easter Monday, various saints’ feast days, etc.) in a secular way, but still… when speed is called for and possible in common law jurisdictions, things can be derailed a bit.

In a way, some bank holidays are no different from MLK Day or Presidents’ Day in the U.S.—they’re specific to our calendar, and nobody else observes them.  Not a huge delay, but a bump in the road that frustrates litigants who expect service to be effected on an English defendant first thing in the morning.

(2) Août

France shuts down in August.  No, I mean roll up the sidewalks, Margaret, we’re closed.  They have a very un-American view of relaxation time, re-booting the senses, and flushing out all the stress and frustration that make the American economic engine just hum along.  The whole country takes the month of August and goes to the beach.  True, somebody has to work the beach, but they import people for that.  And Pierre, the new guy, gets to stay home and run the shop while the boss and all the other staffers are recharging their batteries.  [Sorry, Pierre, the Americans didn’t get the memo and came to Paris anyway, so someone still has to drive the tour bus.]

What does this mean to U.S litigants who file Hague requests in France?  Simple: your paperwork will be delayed at least a couple of weeks—even if you get it submitted before Bastille Day (July 14th).  If you expect a proof within three months, better make it four in the late summertime.

Christmas Market, Cologne. Daderot via Wikimedia Commons.
Christmas Market, Cologne. Daderot via Wikimedia Commons.

(3)  Weihnachten

Christmas is huge in Germany (and in Italy and Switzerland and throughout Europe, really, but they don’t put the brakes on the procedure like the Germans).  So huge that, contrary to the stereotype of Teutonic efficiency, Germany turns rather French around the middle of December, and they don’t show up for work again until January 7th.  They celebrate all twelve days, complete with the partridges and pear trees and ladies dancing.

Like August in France, tack on another couple of weeks, at least, until you get a Hague Certificate back from German authorities.

(4) 春节 (PRC), 春節 (Taiwan)

The Chinese New Year or, as the Chinese themselves call it, Spring Festival.  Imagine a billion and a half people trying to get home for dinner, all at the same time.  The worst nightmares of U.S. holiday travel are multiplied by a factor of four, because everybody is compelled by tradition and respect and obligation not only to go see Mom, but to go and pay respects to their ancestors as well.  It’s like somebody took Mother’s Day, Father’s Day, Grandparents’ Day, Memorial Day, Thanksgiving, and Christmas, and crammed them together into a two-week party culminating with a Lantern Festival.  It’s big.

Now, to be sure, the Chinese don’t take off the entire two weeks (they espouse the same work-until-you-drop-dead-on-the-factory-floor philosophy that made America great), but it slows things down a bit when you need to file a request for service… they get delayed, much to the chagrin of your judge.

Yet not all is lost.

Federal Rule 4(m) and all but a couple of states provide a safety valve for service outside the United States (sorry, Wisconsin & Michigan—you guys will have to get creative, so call me).  Plaintiffs’ counsel is usually held to a reasonable diligence standard rather than a strict, hard-target deadline for service; a very nice shield against dismissal.  But that doesn’t necessarily keep the judge happy, and it doesn’t necessarily keep clients happy either if they think service should happen in their case just like it does in the movies.


* One more lesser-known holiday:  The Feast of the Ascension.  Latter part of May, forty days after Easter.  It’s a big day in the Christian calendar, but celebrated mostly by Roman Catholics—ardently so in Belgium.  They take the whole week off.

As if the earth-shattering scandal surrounding Volkswagen’s EPA “defeat device” were old news, we have become accustomed to story after story of the company’s wrongdoing.  When the spotlight was cast on VW subsidiary Audi earlier this year, the story didn’t make many waves, seemingly because it was expected.  If the parent did it, why not the sub, too?

Next, we learned that yet another European conglomerate sought to defraud U.S. environmental regulators.  Fiat Chrysler Automobiles, N.V. (FCA) was also caught in the proverbial net, with perhaps more to follow.

Of course, the litigation floodgates opened, with suits brought by consumers and state attorneys-general across the United States.  Unfair and deceptive marketing practices, specific violations of merchandising practices statutes, conspiracy, pervasive fraud…

Last week, a newly-released study alleged that the hub of the wheel in the whole scandal was Robert Bosch GmbH*, the massive German engineering & electronics firm.  According to researchers at UC-San Diego and Ruhr University-Bochum, Bosch wrote the code that got the automakers around EPA testing and allowed them to achieve better scores on emissions tests than more scrupulous competitors.  The thought that such a highly respected company would undertake such a massive campaign of underhandedness makes American car-buyers wonder who else was involved.  And so the lawsuits come.

This poses specific, though not insurmountable, challenges to plaintiffs’ lawyers across the country.  All three automakers, as well as Bosch, are chartered and domiciled in nations that are party to the Hague Service Convention.  When they are sued in U.S. courts, service of process must be effected according to very specific guidelines mapped out in the Convention, or the effort to bring suit is a colossal waste of time.

In the case of FCA (now the parent company of Chrysler), the best way to go is pretty straightforward:  serve in England, even though it’s originally an Italian company now chartered in the Netherlands.  Fiat’s head office is in London.

As for the others—VW, Audi, Bosch—it’s Germany.  All Germany, all the time.  And folks over there are very particular about the application of the Hague Service Convention.  Simply put, folks, ain’t but one way to do it.  At least, ain’t but one way to do it right.  And that’s the key.

Specific on How to Serve Process in Germany can be found here.  It’s a fairly regular procedure, but the machine has lots of intricate and finely tuned moving parts.  Be meticulous about it.


* GmbH in Germany = LLC in the United States.  [Whereas N.V., the entity type selected by the creators of Fiat Chrysler, is a Dutch corporation.  A great Wiki defines just about any foreign type of entity you can imagine.]

 

 

 

Thomas Hobbes, the guy who foisted the sovereignty concept on generations of political philosophy nerds. John Michael Wright - National Portrait Gallery (thus Public Domain) - via Wikimedia Commons.
Thomas Hobbes, the 17th century English guy who foisted the sovereignty concept on generations of political philosophy nerds.  Let’s all blame him for this, shall we?   John Michael Wright – National Portrait Gallery (thus Public Domain) – via Wikimedia Commons.

Your defendant is a foreign government.  Or a monarch.  Or a foreign diplomatic mission.  A consul with a diplomatic passport.  A company owned (at least in part) by a foreign state.  (You get the point.)  You’ve done all the analysis necessary to convince a court that jurisdiction is appropriate under the Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.)– the terrorism exception and the commercial activity exception come to mind– but in order to start the proceedings, you have to put the defendant on notice of the claim.  So, how do you get them served?

Honestly, it’s not markedly different from serving a foreign individual or private company based abroad.  But there are a few particularities involved, and they can all be found in 28 U.S.C.  §1608.

The first question:  is the defendant a government (either a state* or one of its political subdivisions), or is it an instrumentality (a seemingly private entity owned by the state)?

Governments are served under §1608(a), and instrumentalities under §1608(b).  Each section lays out a hierarchy of steps.  Simply start with #1 and march your way down the list until you hit an option that works.  If you reach the end of the list and don’t have it done, we should chat, because you’ve probably missed something and are likely facing dismissal.

§1608(a): Government Defendants

  1. If the government has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are pretty rare, but if the drafting attorneys know about the first item in my big list of Five Things, it might make things awfully easy.  No arrangement?  On to #2.
  2. If a treaty relationship exists with the foreign country, follow the treaty– usually by sending a request to a Central Authority where the Hague Service Convention applies– and be sure to include a translation if called for in the foreign country’s declarations.  Be advised, though, that Central Authorities may refuse to serve their own governments on sovereign immunity grounds, especially if they don’t share the U.S. view of the commercial activity exception.
  3. If that doesn’t work, or if no treaty is in place, try mailing it.  A translation into the foreign country’s primary language is required by the FSIA, and it must be sent by a method requiring a signed receipt.**  Now, you may or may not get that receipt… I wouldn’t bet the farm on it.
  4. If 30 days have passed, and you don’t have a delivery receipt, fill out a Notice of Suit (available from the State Department) and send duplicate copies of everything, including translations, to the State Department for transmittal by diplomatic note.  This is particularly hairy if the defendant lacks diplomatic relations with the U.S.

[Here ends the list.  No more options.]

§1608(b):  Instrumentality Defendants

  1. If the instrumentality has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are less rare than with governments, especially if the drafting attorneys know about the first item in my big list of Five Things.  No arrangement?  On to #2.
  2. If the instrumentality has a U.S. agent or officer that can be served in the U.S., hand them the documents.  Alternatively, if a treaty relationship exists with the foreign country, follow the treaty just like above.
  3. If neither of those work, (A) try a Letter Rogatory, (B) try mailing it– with the same warnings as above, or (C) “as directed by the court consistent with the law of the place where service is to be made.”  Honestly, I don’t see how (C) is going to work if none of the above fit the bill, but more odd things have happened in my line of work.

[Here ends the list.  Options just as limited.]

There’s more to it, of course, but fortunately, the lion’s share of suits against foreign governments will begin and end with the Hague Service Convention.  On the surface, it might seem daunting, but not that much more complicated than a private defendant.

 


* “State” here refers to a sovereign.  Rather an odd concept for Americans, who conceptualize sovereignty on a split-screen basis.  Yeah, Missouri is a sovereign state, but it’s not a nation.  Yeah, the U.S. is a nation and a sovereign, but it derives its sovereignty from the consent of the governed through the respective 50 st…  ah, heck, I could ramble on all day.  Point is, in most other countries, “the state” means the national government.  And when we talk about “states-party” in treaty-speak, we mean member nations.

** In federal cases, remember the Rule 4(f)(2)(C)(ii) requirement that the mailing originate from the Clerk of Court, rather than from counsel.  Remember, too, that if mail service is precluded under the foreign country’s declarations to the Hague Service Convention, it’s invalid for this step.

Rio de Janeiro from above Cristo Redentor. Mariordo via Wikimedia Commons.
Rio de Janeiro from above Cristo Redentor.     Mariordo via Wikimedia Commons.

They’ve got a lot of coffee in Brazil, according a certain Mr. F. A. S. of Hoboken.  It is a land of wonder and beauty and mystery and a culture all its own, not to mention home to one of the greatest athletes* ever.  Not quite like its Spanish-speaking neighbors, Brazil is a former colony of Portugal—and the only country in South America to use Portuguese as its official language.  They also throw the most massive pre-Lenten party on the planet (Rio’s Carnival), an event that makes Mardi Gras in New Orleans seem like afternoon tea at Balmoral.  And while Brazil’s political environment remains awash in corruption and mired in scandal, its judiciary has become relatively stable and respected.  Indeed, over the past several years, Brazil’s courts have undertaken a concerted effort to become more transparent.  Serving process in Brazil, while complicated, is neither the labyrinthine undertaking nor lost cause that it may once have been.

Brazil is a civil law jurisdiction, like the lion’s share of the non-English-speaking world.  Service is a prerogative of the courts and, as such, cannot be legally performed by a private detective or process server as we know them in the common law (they don’t exist).  U.S. and Canadian litigants have three options when serving in Brazil, but unlike most of North America’s other major trading partners, it is not party to the Hague Service Convention.  As such, choosing a method is not quite as simple as in the United Kingdom or Italy.

Service of U.S. or Canadian process can be effected (1) by mail, if permissible under forum court rules, (2) by Letter Rogatory, or (3) via local counsel.  In all cases, enforcement of a judgment must be kept in mind– and it is in that light that I recommend Door #3 for just about all cases.  Addressing each in turn:

  1. Mail: Most U.S. courts, where service is allowable by mail to begin with, allow mail service on foreign defendants only where it is not prohibited by the rules of the foreign jurisdiction.  Brazil’s Rules of Court do not specifically prohibit mail service, but they really don’t authorize it either.   As such, it’s all but assured that a later attempt to enforce a judgment there will be rejected.    I recommend against mail service except in very limited circumstances anyway– even if it stands on solid legal ground, it’s a bad idea from a factual perspective.
  2. Letter Rogatory: an official request from the forum court for judicial assistance from a Brazilian court.  Costly and time consuming, this instrument really isn’t all it’s cracked up to be (see here for elaboration on what it is).  Fortunately, Brazil is party to the Inter-American Convention on Letters Rogatory and Additional Protocol,** so the State Department’s $2,275 fee to convey the thing is avoided.  It also doesn’t take the form of a traditional Letter; it amounts to a series of request forms.  But the documents involved must still be legalized and translated, the request has to be signed by the judge hearing the case, and it will take the Brazilian courts the better part of a year (not a typo) to return proof of service.
  3. Local Counsel: Potentially costly, but not dramatically more than a Letter Rogatory, and certainly on a more solid legal footing than mail.  A Brazilian advogado (Portuguese for attorney, as one might expect) can ensure that local rules are followed, thus ensuring that the manner of service will not give a court cause to reject an enforcement action later.  The advogado petitions a local court to assign the service to a court officer (akin to a common law bailiff or sheriff’s deputy), and then the advogado ensures that the officer gets the job done.  Not quickly, but done, if at all possible.

Above all, don’t despair over whether it can be done in Brazil.  Yes, it can.  It just takes a little forethought (what doesn’t?), a willingness to commit resources, and a bit of patience.

 


* A hat tip to the only soccer player I ever knew existed in my youth (other than his teammates,  Nigel Powers and Judge Dredd).  Great enough that just two syllables suffice,  I give you… Pelé .

I tried this kick when I was eight. I failed. And that's when I stopped playing soccer.
I tried this kick when I was eight. I failed. And that’s when I stopped playing soccer.

** Sorry, Canada.  Brazil is in the treaty, but you’re not, so the standard Letter Rogatory procedure applies.

M198, Iraq 2006. U.S. Army photo.
M198, Iraq 2006. U.S. Army photo.

Channeling my inner Army Brat here… when you grow up inside the fortress, your brain necessarily uses combat analogies even if the only uniform you ever wore was in the Boy Scouts.  Bear with me.

Before any ground assault, whether it involves footsoldiers or mechanized troops in a gun truck, an invading army softens up the enemy with a barrage of artillery fire.  They don’t just send in the guys carrying rifles.  Likewise, a defending army can do significant damage if it can lay down a decent amount of ordnance on the invaders.  They don’t just let the other guys walk right up to the gate of the compound and then shoot at them.  [Air support helps, of course, but I’m sticking to the cannon analogy here because my best friend in college paid for his degree in part because he was in an Army Reserve artillery unit.  And because howitzers are cool.]

A lawsuit is like a ground assault, and the first volley of fire comes in the form of a summons.  That summons, as we all know, must be served in a manner that is reasonably calculated to put the defendant on notice of the claim against him (those are the magic words, straight out of Mullane and FRCP 4(f)).  The rules are awfully particular when the defendant is overseas.

Yet, plaintiffs’ lawyers often go it alone, falsely confident that they know how to it the target with the right projectile, if you’ll pardon my already-tortured analogy.  After all, it’s just a matter of filling out some paperwork, right?  I can just hire a process server, right?  The treaty says I can mail it, right?

No.  Maybe.  Not necessarily.

Don’t assume that actual notice constitutes valid notice.

Shortly after I launched my own practice in 2016, I posted my thought that defense counsel should always question the validity of Hague service requests.  I still think that, and it bears repeating, because plaintiffs get it wrong fairly often, and if nobody raises an eyebrow (neither the judge nor the defense), the case proceeds even though it shouldn’t.

Now, bear in mind—the vast majority of what I do is on behalf of plaintiffs, in every manner of case from divorce to personal injury to breach of contract… even adversarial proceedings in bankruptcy.  Advising defendants to put up a fight—indeed, helping them to put up a fight—seems awfully counter-intuitive.  But the fact is, if a plaintiff wins because nobody in the room knows any better, bad law gets made, and the plaintiff wins a potentially unenforceable judgment.

If you’re defense counsel, be inquisitive.  Don’t just let the other fellow’s troops march up to your foxhole.  Lay down a field of fire.  Investigate the manner in which your client was served and don’t assume that actual notice constitutes valid notice, because they’re not the same animal.  Of course, it may not be worth your while to fight a 12(b)(5) motion (even when you get the case kicked, if it’s dismissed without prejudice, the plaintiff can just start over and do it the right way).  But if the plaintiff hasn’t even attempted to do it properly, you’ll have a pretty good argument to get rid of the case.

M777 Light Towed Howitzer. Jonathan Mallard via Wikimedia Commons.
M777 Light Towed Howitzer. Jonathan Mallard via Wikimedia Commons.

If you’re plaintiff’s counsel, remember the invasion analogy.  Call in an artillery strike to make sure your first procedural step doesn’t get your case kicked or—worse—render your judgment unenforceable outside the United States.

In short, don’t DIY your service abroad—if self-help is a bad idea when you need to serve in Paris, Texas, how is it a good idea to handle it yourself in Paris, France?

Altstadt, Düsseldorf. Image by qwesy qwesy, via Wikimedia Commons.
Altstadt, Düsseldorf. Image by “qwesy qwesy” via Wikimedia Commons.

Serving process abroad touches virtually every aspect of civil litigation.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I handle creditors’s rights cases, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of that Ned Stark guy into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.
This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.  But he appears in all of my CLE decks.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.)

Second of all (setting my incredulity aside), let’s say you do handle collections exclusively, no visa applications ever.  What if you’re pursuing a German debtor?  (Let’s call him Dieter just for fun.)

What if Dieter bought a car financed by your client, wrecked it, and moved back to Düsseldorf the next day?  Dieter’s return to the fatherland has thrown a Mjölnir-sized monkey wrench into your otherwise straightforward plan.  You still have to initiate the proceedings, and that’s not going to be as easy as just tossing the complaint into a FedEx envelope and jetting it off to the address listed on Dieter’s MySpace page.  Serving process in Germany requires a very particular procedure.

Or what if the debtor is not Dieter from Dusseldorf– let’s say it’s Stan the soldier from Sacramento– and the Army has just sent him to Stuttgart for three years?  Stan’s status as a soldier serving overseas* makes things even more complicated than if you were serving a German citizen.

Woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (you might win a default, but good luck enforcing it… and good luck overcoming the malpractice complaint).  And it is easily avoided if the litigant and the attorney are patient and understand what requirements they must observe beyond just the rules of the venue court.

The point here is that serving process abroad touches virtually every aspect of civil litigation, and if the plaintiff doesn’t do it properly…

THIS is Ned Stark.
THIS is Ned Stark.

* Hat tip to Monty Python.  Don’t practice your alliteration on me.

Taipei and the Taipei 101 Tower. Uwe Aranas via Wikimedia Commons.
Taipei and the Taipei 101 Tower. Uwe Aranas via Wikimedia Commons.

A bit of history is critical to knowing how to serve process in Taiwan.  Depending on who you talk to, there are two Chinas.  There’s the People’s Republic of China (PRC), the Communist-run mainland, and then there’s Taiwan, the Republic of China (ROC), which is the descendant of the Nationalist regime that ruled China prior to the Communist takeover in 1949, and moved to the island of Formosa.

The split is confusing, and given the massive amount of trade between the U.S. and both Chinas, it looms large over the manner of serving defendants located in either.  Officially, the world acknowledges only a single China, viewing Taiwan (the ROC) as a rogue territory rather than a sovereign nation.   The U.S., especially, regards Taiwan with a wink & a nod… essentially, “no, we don’t officially recognize you anymore, but we’re going to pretend we do for the sake of commerce.”  The policy of the United States is to observe a “One China” policy, but we also have pledged to defend Taiwan from invasion should the PRC decide to make One China a reality.

To the 23 million ethnic Chinese on the island, the ROC is its own nation, and that makes serving Taiwan defendants a bit tricky.    (For details on serving in the PRC, click here, and for Hong Kong here.)

Because it is not viewed as a sovereign, Taiwan can’t technically sign a treaty.*  Accordingly, the Hague Service Convention doesn’t apply.  And that at once complicates matters and makes serving a bit easier.  It’s easier because litigants have several service options available in Taiwan, while in the PRC, there is only one way to make it happen.  The complication lies is choosing the right one.

Before anything else, identify what is to be served.  A summons/complaint or other notice can be served by any of the following options.  BUT (and repeat after me here)… you can’t just SERVE a subpoena abroad (likewise any discovery demands, RFPs, etc.).  You must use a Letter Rogatory to compel evidence production in Taiwan, and evidence requests by this instrument must follow the same Cardinal Rules as Hague Evidence Requests-– dramatically different from serving a summons or notice.  Now, on to options…

Option 1:  Letter Rogatory

  • First, have the Letter Rogatory issued by the court hearing the case.
  • Next, translate the documents-all of them, including the Letter Rogatory.  Although the defendant may speak flawless English, omitting translated documents will prompt Taiwan courts to refuse execution of the Letter.  And for crying out loud, get the right written form of Chinese, which is traditional.  Simplified Chinese is a creature of Chairman Mao’s cultural revolution, so while they may perfectly understand it in Taiwan, it is considered an insult.  A very avoidable insult.
  • On that issue, if your translation provider doesn’t know what that means, find a different translation provider.
  • Next, send everything to the State Department with the appropriate fee.
  • Sit tight. It may take a while—likely several months months from submission to return of proof, if not more.
  • Be prepared to translate the response, which could be rather pricy.

Option 2:  Local Counsel

  • Hire an attorney in Taiwan to have service effected according to local custom and rules.
  • Translation may or may not be necessary.
  • Make sure the proof is written up correctly, or it could be a pretty easy quash.

Option 3:  Mail

  • If the venue court allows it, give it a shot.  Now, I contend that mail service abroad is usually a horrible idea, but in Taiwan, it can be a huge cost saver, and in some cases, the only realistic way of providing notice.
  • Pay very close attention to the rules of the venue.  You can’t necessarily just drop the thing in your outbox and call it good.
  • Always bear in mind that if you mail service, the odds that an enforcement action will be denied go up dramatically.  If your defendant has no assets in the U.S., think twice about going down this avenue.

Again, the lack of Hague coverage in Taiwan is not an inhibiting factor– things can actually be easier and quicker, though not necessarily cheaper, than in the PRC.  Taiwan remains a perplexing foreign policy headache for the U.S.  It is a democratic country with free and fair elections, multiple parties, a sophisticated legal system, and republican form of government.  This tends to make service in Taiwan a much smoother ride than on the mainland.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* That said, it has been accepted as a member of the World Trade Organization and its various treaties… referred to as “Chinese Taipei” in an extension of the wink & nod.

** A bit of irony here…

Chiang's portrait. Kuomintang Archives via Wikimedia Commons.
Chiang’s portrait.
Kuomintang Archives via Wikimedia Commons.
And Mao. (All pictures taken in the PRC are public domain, as I understand it. This one is likewise from Wiki.)
And Mao. (All images in the PRC are public domain, as I understand it. This one is likewise via Wiki.)
Hunderfossen Troll, near Lillehamer,Norway. Åsmund Ødegård via Wikimedia Commons
Hunderfossen Troll, near Lillehamer,Norway. Åsmund Ødegård via Wikimedia Commons

The U.S. Supreme Court ruled unanimously this morning in TC Heartland LLC v. Kraft Foods Group Brands LLC that patent infringement suits can no longer be brought in the Eastern District of Texas.  Okay, that’s not precisely what the Nine Eight Wise Souls held (Gorsuch didn’t weigh in), but that’s the practical result of the holding.  For years, the local rules in E.D. Tex. have made it the hotbed of patent litigation, and ostensibly a paradise for so-called patent trolls.

No more.

Now, patent infringement cases can only be brought “in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”  To be sure, that’s taken directly from the patent venue statute, 28 U. S. C. §1400(b), and that text hasn’t changed of late.  But the Court has applied a bit of order to the vocabulary– essentially holding that resides means resides.  Until today, “resides” was interpreted more broadly, and the Court wrestled the idea back to a narrower meaning.  In short, a corporation’s residence is the state of its incorporation, full stop.

That doesn’t mean a corporate defendant can’t be sued outside its home state.  Obviously, it can be sued in the state where it sites its principal place of business.  And it can be sued where it commits acts of infringement (or other wrongdoing) having put itself in the stream of commerce.  Sure, the stream of commerce idea is being curtailed as well… but if GM intentionally sells a defective Chevy in South Dakota, you can bet South Dakota courts can get jurisdiction over the defect.  And if Dell intentionally markets a computer in California that infringes on an Apple patent, you can bet California will get the case.

So what does all this have to do with Hague Conventions?  Foreign companies– foreign in the “you need a passport to go there” sense– are still going to be sued for patent infringement in U.S. courts.  It just won’t be in the Eastern District of Texas unless there’s a very good reason to bring the case there.  They will still have to be properly served, and that means the Hague Service Convention must be followed, with all its intricacies.   Today’s ruling is not going to stop patent trolling*; it will just spread it out.

A particular note for patent litigators: you’ll probably have to translate the complaint, so make sure you keep it brief.  See here for more.


* For the record, just bringing a patent infringement suit doesn’t make a plaintiff a troll.  Trolls are the guys who buy up patents for fractions of what they’re worth, just so they can turn around and sue designers and manufacturers who might be infringing.  They just want to get in and get out, harvesting nuisance value and putting a huge burden on innovators; these guys really are a problem.  But true infringement cases can no longer be centered in a court with significant expertise in the area.

Interesting footnote:  rule changes proposed in D.Kan. last fall (see James Dornbrook’s article in the KC Business Journal here) would/could have made Kansas City the new epicenter for patent litigation, either to take some of the burden off of E.D. Tex. or to steal its thunder.  Today’s ruling all but squelches that thought– and Kansas City’s high tech community breathes a sigh of relief.  The rule changes may proceed, of course, but it won’t bring hundreds of cases to our doorstep.  Yes, this is disappointing for me, because the thought of all those IP firms putting down roots in my town is exciting– not only for my own practice but for the local bar more broadly.  Still, this is a heck of town for lawyers to be.

Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.
Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.

I called it.  It wasn’t a really stretch, but I was confident that this would be at least a 7-vote decision.  In Water Splash v. Menon, the U.S. Supreme Court this morning held unanimously (8-0, sans Gorsuch) that mail service is permissible under the Article 10(a) of the Hague Service Convention, overturning the Texas Court of Appeals and, along with it, the 8th and 5th Circuits in Bankston and Nuovo Pignone, SpA.  At long last, there’s sense in the jurisprudence surrounding Article 10(a)– for years, I’ve thought the 8th & 5th were flat wrong in their approach, clinging to a very tenuous thread of logic.  Essentially, they focused on the drafters’ use of the word “send”, rather than “serve” in 10(a) and said that a drafting error rendered the intent questionable.  It’s always seemed silly to me, frankly; why in the hell would the drafters have put it in a Service Convention if they didn’t mean it was okay to serve that way?  Justice Alito said as much for the Court, though far more diplomatically.

Yet, I still hold to the same assertion:  just because service abroad by mail is legally valid, that doesn’t mean you should do it.  It’s almost always a horribly bad idea, if for no other reason, because proving proper delivery is a sketchy undertaking.  Plus that, it has to be valid under both the venue’s rules and the destination state’s declaration to the Convention.

Sorry, but it’s frequently unavailable to begin with (read: China, Germany, India, Mexico), and it’s usually is not the way to go anyway.  Article 5 is usually the safest option for serving defendants in Hague countries, but it’s not necessarily the most practical.  Article 10(b)/(c), where available, is usually quicker– and sometimes cheaper.  The choice of which method is most appropriate for any situation requires guidance.  Don’t just DIY the decision.