Service of Process Abroad

Toledo Courthouse, San Juan, PR. Notice the big blue mailbox with the eagle on it.  Look familiar? (Daderot, via Wikimedia Commons.)

This conversation happens pretty frequently.  At first glance, it might seem like a silly discussion to have, but in reality, most of us don’t have a good handle on the geography or history behind it because we were never really exposed to it in high school.  And who paid attention then, anyway?

Caller:  “Hey, Aaron, how do I serve process in Puerto Rico?”

Me:  You pick up the phone and call a process server on that sunny island.  It’s really that simple.

Caller:  “But don’t I have to follow the Hague?”

Me:  No.

Y’see, Puerto Rico is a territory of the United States, and has been since just after the Spanish-American War.  Think “Remember the Maine,” Teddy Roosevelt, San Juan Hill and all that.  Of course, San Juan Hill is in Cuba and the city of San Juan is in Puerto Rico, but I digress.  Puerto Ricans (or, Boricuas if you’re keen to use the proper term) are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.

For the purpose of procedural requirements in U.S. state courts, Puerto Rico should be viewed in the same manner as a sister state…

  • Divorce case in Georgia, serving a respondent in Saint Paul?  You need a Minnesota process server.
  • Divorce case in Georgia, but serving a respondent in San Juan? You need a Puerto Rico process server.  It’s literally the same analysis.

Things are even clearer in federal court…

  • RICO case in S.D.N.Y., serving a defendant in Miami?  You need a Florida process server– or any non-party adult willing to do the job.
  • RICO case in S.D.N.Y., with a defendant in Mayagüez?  You need a Puerto Rico process server– or any non-party adult willing to do the job.  Again, same analysis.
  • In either case, the defendant is obliged to waive.  And if they refuse without cause?  Mandatory fee shifting under Rule 4(d)(2).*  They’re within a judicial district of the United States (D.P.R., naturally), so… pay up, folks.

Perhaps an even better analogy is this:  think of Puerto Rico in the same way you’d think of the District of Columbia.  No, it’s not a sovereign state, but it might as well be– at least in terms of procedural questions.  People born in DC are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.  (To be sure, both DC and PR are taxed without representation, but that’s an entirely different kettle of fish.)

In short, you don’t need somebody like me to effect service in Puerto Rico pursuant to the Hague Service Convention.  [Unless you’re in Canada– and even then, it’s pretty simple.  Yes, the Convention would govern how you do it, but you can use a process server under Article 10(b) just like you would in Michigan.]


* For a discussion of fee shifting in cases where a foreign defendant refuses to waive, see Serving Overseas: The Carrot and Stick of Waiver.  [That’s foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.  Yes, this is a distinction only a very nerdy lawyer could love.]

 

 

Albert Jankowski, via Wikimedia Commons.

My practice area is a very tight niche, and explaining it to colleagues sometimes means getting into very tall weeds.  Odd conversations tend to follow my CLE lectures.  Or bar association happy hours.  Or tours of farwaway legislative chambers.

I’ll describe what I do, and the colleague I just met will express appreciation for what I illustrated, tell me it’s a really neat niche, and then try to convince herself (or himself) that our practice areas don’t overlap.

Oh, but they do, I promise you.  The banter usually goes something like this:

Sorry, Aaron.  I handle employment law, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that.  I’m glad you enjoyed it.  (Inside my head:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

Hang on a second…  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.  (She’s not kidding, sadly.*)

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

More importantly, though, what I do has direct bearing on your employment practice.  A huge impact, especially in a global economy where operations are directed from far-flung headquarters around the world.  Allow me to illustrate…

Let’s say your client, a gay Latino with a disability, works for a large retail chain that specializes in low-cost furniture and home products.**  Let’s also say that the employer provides a unique shopping experience and wonderfully tasty meatballs that are available to take home from a freezer located right next to a pallet of picture frames and window blinds.  Your client has been harassed for one reason or another, but his pleas to local supervisors and the company’s management team all the way up to the mothership have gone unanswered.  The abuse continues, and in the hope of vindicating the poor fellow’s rights, you take his case.

But who do you sue?  Well, the U.S. subsidiary that runs the store, of course.  The harassers & managers individually.  They’re pretty easy to identify as culprits.  Ah, but what of the off-shore mothership?  The one in Scandinavia, where the meatball was perfected?

Yes, you name the parent company as a defendant, too.  Just because they aren’t here doesn’t mean they aren’t part of the problem.  But now things get interesting, because you have to properly serve the parent company where it resides.  In this hypothetical, let’s “say” it’s headquartered in Sweden (wink wink, nudge nudge).

You’ll have to translate the service documents into Swedish (setting aside the fact that Swedes speak better English that I do).  You’ll have to fill out your USM-94 correctly (that’s a big one– very important, the USM-94).  And you’ll have to wait the three or four months it usually takes to get a proof of service back from Stockholm.  Odds are, you’ll get a call from opposing counsel to discuss settlement before you even receive the proof, but if you don’t even try to properly serve the mothership…

This is Ned Stark.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Disclaimer:  I love Ikea— especially those Swedish meatballs that are finally available in Kansas City.  I know of no situation in which a disabled gay Latino employee has been harassed at an Ikea store, and I imagine that a company born in Sweden would take a very dim view of such treatment of its employees.  Its inclusion here is for illustrative purposes only.

(Start running your geek flags up the pole, folks.)

Transnational Lawyer’s Log, Stardate 23866.2:

An interesting quandary was posed to me recently in an email.

“Aaron, my client was sued in a Klingon court, but was served without a translation into English.  The plaintiff sent the summons by interplanetary mail– and it was only sent in the Klingon language, lacking even a summary of the case in English.  My client is just a yeoman on the USS Intrepid– one of the guys in red shirts who have the sky-high casualty rate– and was involved in a rescue of the inhabitants of the Khitomer outpost attacked by the Romulans.  He doesn’t speak a word of Klingon (the poor kid doesn’t even like Gagh*).  Apparently, a couple of the rescued inhabitants were injured in the operation, so they sued him.  The Klingon court issued a default judgment, and the plaintiffs now seek to enforce the judgment in his home state of Michigan.  Opposing counsel says they didn’t need a translation to make it valid service unless they go through the Central Authority.  Help?”

Well, let’s first establish that Klingon signed onto the Hague Service Convention in the year 2322, twenty-five years before the Khitomer massacre.  They objected to Article 10, and stated a requirement that all Article 5 requests be transmitted along with a full translation into Klingon.**  Michigan has been part of the Convention– via the United States’ ratification– since 1969, well before stardates or the United Federation of Planets were a thing.

Anyway, the young yeoman has some plausible arguments…

  • Number one, I would attack the omission of a translation on a straight-up due process basis.  Technically, opposing counsel is correct in that a translation isn’t required by the U.S. declarations to the Convention– but those declarations also make clear that our courts may choose not to enforce judgments that arise from mailed service that isn’t accompanied by an English translation.
  • Number two, the Klingons don’t allow mail service on their own citizens– they object to Article 10 of the Hague Service Convention in its entirety– so service by mail isn’t valid in either direction.  The poor kid from Michigan can’t serve the Worf family by mail, so nobody from Klingon can do it the other way.
  • Number three (and this is the big one), remember the constitutional standard…   “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. ” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Just because a decision is four hundred years old doesn’t mean we forget about it.  This thing still holds water, even in the 24th century.  And if a defendant doesn’t speak Klingon, the calculation isn’t even remotely reasonable.  It’s laughable.
 Now, I don’t want to go off on a rant here.  I tend to be a bit more Vulcan than my gruff exterior might indicate.  But this is just sloppy lawyering from the Klingon side.  Those guys ought to know better.

 


* Gagh really is more satisfying when eaten live.  It’s a bit disconcerting the first time, but still.  Tasty stuff.

** If you’ve never heard Shakespeare or Dickens in the original Klingon, you’re really missing out.

Image by “Hibino”, via Wikimedia Commons.*

An interesting opinion was handed down this morning in the Middle District of New York—not very earth-shattering, to be sure, but a solid illustration of where lawyers think they know what they’re doing, but really don’t.

A brief rundown of the facts:  the plaintiff is a high school student, Peter B. Parker, who alleged that during a class field trip to The Banner Collection, a prominent midtown museum, he was stung by a rare and poisonous insect in the museum’s animal research facility.  Named as defendants are the Collection’s owner (Crown), and its former Director of Operations, Dr. Diana T. Prince.

On the surface, a fairly straightforward personal injury claim.  Things got more complicated in light of Prince’s departure from New York shortly before the suit was filed, to accept a position as Curator of Antiquities at the new Wayne-Kent Institute in her native Athens.  Crown waived service (as it must under FRCP 4(d)), but Parker’s attorney served Prince at the museum in Greece via FedEx.

When Prince failed to appear, the court granted Parker’s motion for default judgment, and proceeded to trial against the museum.  A jury found that the museum was negligent in allowing a class of high schoolers into a research laboratory, but found that the plaintiff’s own negligence far outweighed that of the museum.

After the verdict, Prince read about the case in a trade magazine circulated to museum curators around the world, and hired counsel in New York to revisit the claim against her.  In their motion to set aside the default, Prince’s lawyers made several arguments, all of which I see as pretty solid.

  • First, Parker presented no proof of actual delivery to Prince herself—only a printout from FedEx indicating that the parcel sent by counsel was left in the Wayne-Kent Institute’s mail room.  Lacking any demonstration that she had received the notice, her attorneys argued, the service attempt should be quashed and the default judgment thrown out.
  • Second, Prince’s lawyers pointed to the FedEx dispatch itself as deficient.  FRCP 4(f)(2)(C)(ii) requires that, where a treaty allows but doesn’t specify a means of notice, service by mail is valid if the Clerk of Court addresses & sends the documents, with a signed delivery receipt required.  Parker’s counsel sent it directly from their office and provided no signature whatsoever.
  • Third, even if Parker had properly observed 4(f)(2)(C)(ii), Greece objects to service by mail under the Hague Service Convention, so the method has no legal effect in the first place.
  • Fourth—and this is the one that really gets me, because it’s just sloppy, lazy lawyering at work—although Prince was the Curator of an Athens-based museum, her office and domicile were in Israel, and no attempt was made to locate and serve her there.  At all.  (In an ironic twist for Parker, Israel doesn’t object to mail service under the Convention!)
Dr. Prince at a press conference in Tel Aviv, announcing her appointment as Wayne-Kent’s Curator of Antiquities.

In the end, the judge set aside the default based solely on Dr. Prince’s first argument, but admonished plaintiff’s counsel in light of the legal deficiencies laid out in the other three… and assessed Prince’s costs to them.  Of course, they could take another bite at the apple, but Prince would still have a couple of fancy Latin terms at her disposal: res judicata, respondeat superior

Again, this all comes down to very sloppy lawyering by plaintiff’s counsel.  Truly, a simple Google search would have told them that, while the defendant was born in Greece, she is an Israeli citizen– she even served two years in the IDF.  Had they exercised even a modicum of diligence, they could have served her properly.

Moreover, this case illustrates the importance of client-vetting.  These attorneys should have known that their plaintiff, although an orphan, was little more than a whiny kid who didn’t just mitigate his damages– he made a fortune off of them.  Media appearances alone have made him millions in the few years since the injury; perhaps Crown has a cause of action against him for unjust enrichment?


* The image above is actually the Museum of Modern Art in New York, which Crown’s owner purchased in 1998 and renamed for an old friend, Dr. Bruce Banner.  The facility expanded beyond art and into natural history research shortly thereafter.

 

Bermuda Tourism Authority, at gotobermuda.com. No, seriously, go to Bermuda. And take me with you.

We ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination; this could be a frightening concept if, like me (at the age of eight), you believe in the mythology surrounding the Bermuda Triangle.

Serving process in Bermuda is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter.  The tiny island is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.*  A fair number of U.S. tourists spend time in Bermuda, just a few hundred miles off North Carolina, and a whole bunch of financial houses are chartered there thanks to a highly favorable tax structure.  That means a fair amount of U.S. litigation involves entities on the tiny island.

Some background is in order, if you’re so inclined, before we cut to the chase.

Now, for the chase scene.  Here’s how service is effected in Bermuda:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely three or four months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

Pretty straightforward stuff in Bermuda.  For more insight, the UK’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.  And I’m serious– when you go to Bermuda, take me with you.

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.


* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text.  If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States.  The methods described there aren’t even part of the agreement.

Federal Reserve image.

My practice area is a pretty goofy little niche, and explaining it to colleagues gets me into the occasional comedy of errors.  Really, odd conversations tend to follow my CLE lectures.

Or bar association happy hours.

Or tours of farwaway legislative chambers.

It happens all the time.  I’ll mention what I do, and the colleague I just met will express appreciation for what I described, tell me it’s a really neat niche, and then try to convince himself (or herself) that our practice areas don’t overlap.

I’m here to tell you that, yes, they do.  The banter usually goes something like this:

Sorry, Aaron.  I handle creditors’ rights, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that, Stewie.  I’m glad you enjoyed it.  (But inside:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

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.*)

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

More importantly, though, what I do has direct bearing on your debt collection practice.  A huge impact, especially in places where lots of foreign citizens borrow from local and national lenders.  Allow me to illustrate…

Let’s say your client is a bank or a mortgage outfit.  Let’s also say they’re in Branson, Missouri (or pick just about any in-demand resort area, whether in the Ozarks or out on the coast).  They specialize in lending to folks who want a vacation property on a picturesque waterfront.  The bank loans a huge chunk of money to a Ukrainian fellow who just can’t get enough of the Baldknobbers (it’s a thing in southwest Missouri… just trust me) and the comedic stylings of Yakov Smirnoff.  It seems this guy’s wife fell in love with a beautiful six bedroom cabin on Table Rock Lake, so they cashed in a few savings bonds and bought the place.

Thirteen months into the mortgage, Mrs. Ukrainian Lady decides that Kiev is more to her liking than Branson, so the couple hightails it east toward their homeland.  They stop making mortgage payments, and a year later, your client wants to cut its losses.  What do you do?

Well, the first thing you have to do is get a foreclosure suit filed (this illustration really could be any kind of collection action, but if I can promote tourism in my state with some down-home flavor, all the better).  All Missouri counties now have e-filing, so that’s not a tough undertaking.

Next, you get the court to issue a summons to the borrower.  The clerk is happy to e-mail you the thing via CaseNet.

And now things get interesting.  Service of process, you say?

Sure, it’s an in rem action, but you can’t just nail the summons to the front door of the cabin and say you’ve served process.  You also can’t serve by publication until you’ve made a reasonable effort to serve personally.  Your defendant has gone back to Ukraine, and you have to at least try to serve him there, because your client didn’t think to have him designate an agent for service in the mortgage agreement.  You find out that Ukraine is party to the Hague Service Convention, which is mandatory doctrine if you’re serving a defendant in a country that’s signed onto it.  Ukraine objects to service by mail, so that option’s off the table, and your only remaining choice is a request to Ukraine’s Hague Central Authority.

Fortunately, the Ukrainians are pretty liberal about the language issue, so you may not have to shell out a thousand bucks for a translation.  And they get the job done when you ask nicely (unlike their Russian counterparts).  But you still have to fill out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

Then you sit and wait, while your client sits on a mortgage they can’t foreclose for at least six more months.  And if you don’t even try to get him served, you’ll have a tough time getting the judge to proceed without that indispensable defendant.

This is Ned Stark.

 


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

Not the Paris you’re thinking of.      Jeanne Boleyn, via Wikimedia Commons.

I fielded an interesting phone call last week.  It seems the caller rather enjoyed the august pages of my blog—thanks to a quick Google search on how to serve process in Italy—and rang me up to make sure he was doing things the right way.  Excitedly, he told me that he’d gotten his documents translated, just like I suggested.  He said he’d identified the correct Hague Central Authority, just like I suggested.  The paperwork was all pulled together and ready to go—but he was a bit uncertain.

As a courtesy (which I’m always happy to provide), I told him to email me the documents and I’d take a look at them for nothing.  I’d only charge him if I saw glaring errors that needed to be fixed.  After I looked at them, I gave him a thumbs-up and reassured him.

Ye did it right, counsel.

“Whew.  Good,” he said.  “That would have been a huge chunk of my life wasted if I hadn’t.”

How many hours do you have into it? I asked.

“Sheesh.  At least ten.  And I’m still not done.”

Hmmm.  You could’ve saved a whole lot of heartache and just had me handle it for you.

“Oh, you’re admitted in New York, too?”

Um… no.  Why?

“Well, don’t you have to be admitted in New York to do this on a New York case?”

Nope.  Just admitted somewhere.  I’ve got the Show Me State.

Poor fellow was incredulous.  “You mean I could have just hired you and saved myself all the trouble?”

Yep.

It isn’t necessary to be admitted in the court hearing the case to sign a Hague Request.  It is necessary to be a licensed attorney, but the U.S. declaration to Article 5(3) of the Hague Service Convention says any attorney can do it.  Any.

Yes, counsel.  That means you, too.  I’ve posted several times that service abroad is something that you can do yourself.  But that doesn’t mean you have to—or even should.  After all, you wouldn’t serve process yourself in Paris, Texas, so why should you handle service yourself in Paris, France?

The one you’re thinking of. Waithamai via Wikimedia Commons.

You wouldn’t send your junior associate to serve a defendant in Queens, so why would you have that same junior associate worry about serving in Queensland, Australia?

Short answer:  don’t.  Just outsource it.  To illustrate, I don’t represent DWI defendants.  Yes, I’m officially qualified, but it would take hours of research, and questions to the various listservs I subscribe to, just to figure out the choreography of the hearing.  And that’s before I even delve into the substantive law.  Fortunately, when my favorite aunt calls me to say that my (idiot) cousin Ernie* blew .11 on his way home from the bar, I have friends I can send her to.  That is, friends I can send Ernie to.

Short rationale: it will save you a whole bunch of time, and it will save your clients a whole bunch of money.  Service in Vienna, Virginia is something you hire someone else to handle… it makes sense to do likewise in Vienna, Austria.

If you have overseas defendants or overseas witnesses or you need to enforce a U.S. judgment overseas, give us a call… it’s what we do. **


* Ernie is an idiot on his own merits.  This condition is not a predicate to his DWI charge, but it certainly makes the situation worse.

** Finally, I get to work William Shatner into a post.  I celebrate his entire catalog (even T.J. Hooker), but Shatner’s best work is when he’s lampooning Shatner.

 

DoD photo (thus, public domain). Via Wikimedia Commons.
DoD photo (thus, public domain). Via Wikimedia Commons.

Litigation is civilized combat.

That’s not my original thought, but forgive the lack of appropriate credit.  I don’t recall where I first heard it.

Sure, it’s an oft-criticized concept– thinking of litigators as warriors, hired guns, Viking marauders, etc.  But it offers perspective on how to approach a dispute once diplomacy and negotiation break down.  In this particular analogy, I offer a sport that has intrigued me for years, although I’ve never gotten into it: fencing.

Think of a lawsuit as a fencing bout.*  A thrust is an offensive move—literally trying to strike your opponent with your blade.  A parry is defensive in nature—either a block to the thrust, or a simple change in position—rendering the thrust ineffective– and when followed by a riposte, turns around on the aggressor.  In a suit, service of process is the opening thrust, and if it’s done incorrectly, it is easily parried away, and can be turned into a fatal riposte (dismissal!).

Last month, Nathan Park’s Asia in U.S. Courts blog (which I highly recommend if you’re at all interested in the Far East and its interplay with the U.S. judiciary) highlighted a parry that went wrong for the plaintiff—in a completely preventable way.  She alleged that a piece of medical equipment had injured her, and sued the manufacturer in California.  The defendant is Japanese, but has a subsidiary in Illinois.  With me so far?

Counsel served the Japanese parent by delivering the documents to the Illinois sub.

Sorry, ma’am– not valid, said the court.  The subsidiary wasn’t sufficiently shown to be an agent of the parent company.

Now, Illinois has a statute that allows precisely that sort of service, but the statute only applies to Illinois state court actions.  This statute was at the heart of Schlunk, the seminal, end-all-be-all, Great White Whale opinion in Hague Service Convention matters,** which held that the Convention was mandatory where it applied, but because the defendant (Volkswagen) could be served in Illinois, the Convention was inapplicable.

It seems that, perhaps somebody misread Schlunk and thought “hey, let’s tag the Illinois sub based on that opinion.”  That the California court based its ruling on other grounds doesn’t validate the way the plaintiff tried to serve.

To their credit, counsel also undertook a belt-and-suspenders tactic: directly notifying the Japanese defendant by FedEx.  But they didn’t follow 4(f)(2)(C)(ii), and subsequently insisted that it wasn’t service, but merely delivery of a courtesy copy.  When the judge rejected the Illinois method, they did pursue the proper mail procedure.

But again… not so fast.  That doesn’t necessarily suffice– and it could be disastrous if the plaintiff has to enforce a judgment overseas.

For starters, serving abroad by mail presents significant factual challenges:  it’s hard to prove.  It’s also hard to demonstrate that it made it upstairs to the defendant’s actual office, even though FedEx or the Post Office might get the thing to an office building’s mailroom.  Beyond that, although the legality of the method is solid in federal court here in the U.S., it’s questionable in Japan.

Article 10(a) of the Convention offers “postal channels” as a viable option, provided the destination state does not object.  Canada, the UK, the US… we don’t object.  Germany, China, Switzerland, Mexico… they all do.

The Japanese, though, are stereotypically measured in their position.

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”

“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”

Um… huh?  They don’t object because it doesn’t infringe on their sovereignty (service of process is a sovereign function), but it might be a violation of the defendant’s rights under local law, which means the law triggers an objection?  (Which might put it in conflict with 4(f)(2)(C)!)

In other words, different from yes?

Several years ago, I was told by a friend who was studying Japanese that the language lacks a direct translation for “NO”.  They say “different from yes” as a means of not offending the listener.  And that’s what we have here.  Out of fear of offending a foreign partner, the Japanese statement on 10(a) creates a really murky situation.  Combine that with the fact challenges of mail service, and only one motivation can possibly justify using mail to Japan:  saving a few bucks.  It can’t be called a valid method of service with sufficient certainty.

The best course is, without question, a request to the Japanese Central Authority pursuant to Article 5.  They don’t take that long, and– if you’re judicious in your drafting (ie: brief)– they don’t cost much to undertake.

Back to the fencing match.  Service of process is the very first thrust a plaintiff brings to the arena.  Mail service is a pretty weak way to lead off the bout.  And there’s not a lot of justification for it when the primary method is so straightforward.


* A fencing match is called a bout.  I had to look that up.  Cool wiki on fencing terminology here.  Thrust is replaced by the more specific lunge.  Still, fun to learn new stuff.

** Although the rule laid down by the Supremes (unanimously) didn’t apply to that particular case, this was back when the Court had a little forethought and decided to fashion a rule in an opinion even though it might not apply to the case at bar.  If only they’d done so in Water Splash.

If only they actually made these. (OttomanJackson, via Wikimedia Commons)

A few months ago, I offered up a nightmare scenario to illustrate the importance of properly serving under the Hague Service Convention.  After I mentioned it in a CLE lecture (about legal blogging, of all things), a colleague asked me a question that compelled me to revisit the issue.  “Here’s a thought,” he said… “what if somebody wins the lottery?”  Alarm bells started going off in my head.  Holy cow, I thought.  That’s an even bigger nightmare than I’d envisioned.

My original hypo suggested a divorce case, wife a U.S. citizen, husband an undocumented Mexican immigrant.  He goes back to Mexico, and she petitions for divorce, but doesn’t serve properly (she mails it, rather than going through Mexico’s Central Authority for the Convention).  The court enters a default in her favor despite the ineffective service, and she gets sole custody of the kids, quiets title to the house, and gets back out into the world as a woman unencumbered by an absent spouse.

But the husband shows up on her doorstep a few years later, only to find that she’s married again– this time to a very nice fellow she met at the Piggly Wiggly.  The husband is justifiably angry that his kids are addressing Piggly-Wiggly-Guy as “Dad” and finds a really good lawyer to reverse the carnage.

What result?  Well, I imagine that the husband would get his house & kids back, unless the judiciary loses its collective mind.  And I also imagine that counsel for the petitioner is going to be hauled before OCDC… and then into a malpractice suit.  Not fun for the lawyer.

Now add a state-sanctioned jackpot wad to the story.  Let’s say the wife throws a sawbuck into an office lottery pool.  She and her officemates split a $300 million prize– after taxes, she has a nice, tidy twenty mill to play with.

Mightn’t that constitute marital property?  Of course it might.

But in which marriage?  Not the one with Mr. Piggly-Wiggly-Guy in it.  The malpractice stakes just got a bit higher, no?

Point is, it’s up to the petitioner to properly serve the respondent.  If the petitioner’s lawyer doesn’t do the cursory research to learn the right way, he’s not only doing his client a disservice, he’s exposing his practice to some very nasty risk.


Readers here can very easily find a how-to primer about the countries most frequently served by U.S. and Canadian litigants, both within the Hague community and without.  Just scroll up to the top of this page and type the country name.  Go ahead… we’ll be here for you when you get back.

Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application. "i_am_jim" via Wikimedia Commons.
Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application.  Image: “i_am_jim” via Wikimedia Commons.

“So, Aaron, what kind of law do you handle?” ”

Anything in litigation that crosses a border.

“Oh.  Immigration?” [After a few dozen times hearing that, I revised my answer.]

Procedural issues in litigation that cross borders.

They still ask if that means immigration, but no.  No, it doesn’t.  At least not with regard to the Hague Service Convention.

However, an interesting development out of Texas last week… a naturalized U.S. citizen was denaturalized (had his citizenship revoked) because he’d lied on his application some twenty years ago.  From the U.S. Immigration & Customs Enforcement press release:

Jose Arizmendi, 54, a native of Mexico, pleaded guilty in April 1996 to aggravated sexual assault of a child in the District Court of Harris County, Texas. When Arizmendi applied for naturalized U.S. citizenship later that month — and again when he was interviewed in connection with his application in October 1996 — he answered “no” when asked if he had “ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance excluding traffic regulations.” Relying on this answer, the U.S. government granted his naturalization application and Arizmendi became a U.S. citizen later that year.

Of course, one has to wonder why he wasn’t incarcerated on the aggravated sexual assault of a child plea– and one has to wonder why the Immigration & Naturalization Service (ICE’s predecessor) didn’t at least run this guy’s prints before giving him the right to vote… but I digress.

As it turns out, when the U.S. Attorney initiated denaturalization proceedings against him, he was serving a hefty prison sentence in his native land, so the Department of Justice had to serve him under the Hague Service Convention.*  Of course, Mexico can be a tough nut to crack— even under the best of circumstances, the procedure takes 9 months or more to receive a proof of service from the Mexican Central Authority.  But he wasn’t going anywhere, so a delay really didn’t grind the wheels of justice to a halt.  Regular plaintiffs don’t enjoy the same ability to wait it out, but they have no choice.

 


* I wonder if the Hague Service Convention is truly applicable here.  By its own terms, the treaty applies to civil and commercial matters only.  Egypt, for instance, at one time refused to serve divorce papers on the grounds that it considered family law outside the scope of “civil”.  Many authorities in Germany reject requests to serve tort complaints from U.S. jurisdictions with split recovery statutes; they consider such actions at least partially punitive/retributive in nature, so quasi-criminal rather than civil.  It seems to me that a denaturalization action is quasi-criminal, quasi-administrative… not wholly civil.  Still, Mr. Arizmendi is no longer a U.S. citizen no matter how you slice it.