An interesting quandary pops up fairly regularly, and I find myself explaining the issue so frequently that it warrants a post.  [TL;DR… in the U.S., corporations and other entities created pursuant to statute have registered agents.  Elsewhere– and I mean just about everywhere else– the same types of entities only have registered addresses.  You don’t have to worry about whether you’ve designated the right individual officer because there isn’t one.]

To the average lawyer in the U.S., defendant entities should be served by delivery to their registered agents.  In most U.S. states (or maybe it really is every state), an entity has to list a specific person or entity to act as its agent for service.  Pretty straightforward stuff… I am the registered agent for my law firm and my wife’s consulting firm (both LLCs), and act as an agent for a few Missouri trusts established by a colleague who lives on the other side of State Line Road.  Hand a summons to me, and you’ve served one or more of those entities.  If you’re suing a certain carmaker in Dearborn, Michigan (think blue oval, truck models beginning with the letter “F”, and most cop cars), you look them up through the Michigan Secretary of State and find that, hey… Ford is a Delaware corporation, with a Michigan “resident agent,” The Corporation Company, located just outside Detroit.

But let’s say your client was injured in a Land Rover.  A quick Google search tells you that the complete manufacturer’s name is actually Jaguar Land Rover Limited.  You’d go to the official Companies House site in London, where a quick search yields JLR’s registry and the knowledge that its registered office address is on Abbey Road in Coventry (no, not that Abbey Road).

You can click on the “People” tab to find out all of the company’s officers and directors, but two words you won’t see are “Registered Agent.”  The way they do it over there is to simply deliver process to the registered address, and it’s a done deal.  A receptionist, security guard… we hand the docs to whoever is in charge of the address, and Bob’s your uncle.

Just for funsies, change the defendant one more time– say the allegedly defective car is a Beemer.  It takes some digging to get to the German registry, but it shows BMW at Petuelring 130 in Munich (link has a bot-check)… and an address, but no mention of an agent.

That’s not a problem, especially in Germany, where service is actually of function of the court, rather than a duty of the plaintiff.  A judicial official usually effects service, and they verify that a request bears the right address, but you still want to get it right the first time.  Registries* are the best way to do that with entity defendants.  Just disregard the lack of a designated agent.  It’s no problem.

* The English registrar of companies maintains a fantastic list of links to other countries’ registries.  They’re not all easy to navigate, but this is a great resource that has alleviated hundreds of headaches for my clients.  That’s how I got to BMW in Germany.

Sunset over the Isle of Arran, in the Firth of Clyde, Scotland.

Two or three times a week, I’ll get an email or phone call from a civilian (ie: somebody wise enough to have avoided taking a bar exam) seeking help with a cross-border issue.  The majority are pro se spouses (or ex-spouses) who need help serving a divorce action or petition to modify custody or child support.  Quite often, it’s a business owner in conflict with an overseas supplier.  Occasionally, it’s an injured party seeking damages from a foreign* manufacturer or visiting driver from abroad.

In each and every case, I tell the caller, “have your attorney get in touch with me and I’ll be happy to help.”  Their responses usually come in one of four forms:

  • Will do.  You should hear from her tomorrow.

Excellent.

  • I don’t need a (*!@&ing) lawyer.  Go (*!@&) yourself.

[I have no problem hanging up on these guys.  Yes, they’re universally men, in my experience.]

  • I can’t afford a lawyer.

[This one truly is heartbreaking, but I still can’t risk advising them, so I suggest contacting Legal Aid.]

  • I’ve tried to find somebody to help me, but they don’t understand the Hague and they’re afraid to take my case.

My reaction:

It’s this fourth one that most bothers me, because there’s no good reason for it.  There are any number of highly capable specialists** who can advise lawyers of every stripe on a host of niche questions.  There are a couple of us who handle service abroad almost exclusively.

Recognizing that there might be 137 different reasons to decline a representation, an offshore defendant shouldn’t automatically be one of them.  All other factors being equal, take the case, and then avail yourself of the resources available to you.  The Hague Service Convention doesn’t have to be the daunting, 800-pound gorilla it’s reputed to be.  At the risk of sounding all sales-pitchy, you’ve got three ways to go:

  1. Tap us on the shoulder for bespoke attention — or tap somebody on the shoulder for help,
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your Hague forms, or
  3. If you’re feeling froggy & are confident enough to handle it yourself with a bit of guidance, see “How to Complete a Form USM-94” for a step-by-step primer.  It lays out the framework you’ll need.

But above all, don’t decline a case merely because you don’t know everything there is to know about tagging offshore defendants.

That’s what we’re here for.

 

* It’s a term of art.  Here, I mean foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.

** The word “specialist” is a minefield for Missouri attorneys.  It causes myriad headaches in our bar, and others– but the simple fact is that lawyers specialize.  Unless you’re a small-town generalist, specialization is the only way to make a go of it as a lawyer in the 21st century.  There’s certainly merit to the restriction: if a lawyer says they specialize in XYZ, and they really don’t know much about XYZ but birddog cases to refer out to somebody else for a fee, that’s bad.  But the truth is, I’m far more honest if I say I specialize in something– and accept work only in that field– than if I just put up a website that says “Lawyer!” and lead the public to think I can handle anything that comes my way.  We can call ourselves experts (just as questionable), and we can say our “practice is limited to XYZ,” but each says something different.

Ping An International Finance Centre, Shenzhen

The single, most important piece of information in serving a defendant is his/her/its location.  Without the “where,” nothing else matters.  Domestic defendants, foreign defendants, U.S. citizens living abroad… everything boils down to location.  Now, in most places, just saying “I need to serve a defendant in Japan” is perfectly sufficient.  The Hague Service Convention applies.  There is but a single way to get the job done.  And there’s no question about whether translation is required.  Likewise Mexico, Turkey, Korea, and the like.  But there are a few places around the globe that require a bit more inquiry to determine options and requirements.  This begins a series to look at particular places that aren’t quite so simple, for better or for worse.

Southeastern China is a world unto itself.  If you imagine the American industrial heartland (think Chicago-Detroit-Cleveland-Pittsburgh) in the 1950s, multiply output by a factor of twenty and you have a pretty good idea of the Guangdong Province metroplex.  I call it that merely for brevity’s sake, because a handful of China’s largest cities– two of which are larger than New York– are clustered together around the Zhujiang River Estuary.  Guangzhou, Shenzhen, Foshan, Dongguan, Macau, Hong Kong…. those are merely the big ones.  That doesn’t take into account the dozen other cities larger than a million people, sprinkled about the region like so many raindrops.

This is China’s industrial heartland, if not due to manufacturing dominance, certainly from a litigation perspective.  Shenzhen in particular is home to more defendants in U.S. litigation than any city in China outside of Beijing,* and I’m not even sure Beijing wins that title.  Hong Kong has been a major source of manufactured goods for decades, since long before China’s rise to industrial prominence and reassumed its sovereignty over the former British colony.

Here’s where it gets tricky.  If the defendant is in Shenzhen (or elsewhere in the PRC), we’re back to “ain’t but one way to do it“ with a very specific translation requirement and an incredibly long wait.  If the defendant is in Hong Kong, just across a narrow river, the world is our oyster, and we can anticipate proof of service within days or weeks, rather than months or years.

Always remember– proper Hague Service (really, proper service under any legal regime) relies entirely on location.  It drives the threshold questions: (1) does the Hague Service Convention apply?  (2) If so, what options & hurdles does it present?

Where… is absolutely critical.

* An admittedly unscientific statistic, but one borne of experience.  The defendants that cross my desk are more apt to be named something like “Shenzhen (insert typically sunshine-laden company image) Industry Company, Limited” than not.  For a bit on naming requirements for Chinese companies, see Dan Harris’ excellent China Law Blog post on the subject.  Even Dan uses Shenzhen as the exemplar city.

How’s this for odd? Amazon lists the CD for five bucks and the vinyl for seventy.

Billy Joel released The Stranger album in 1977, just as I was starting the first grade.  It wasn’t until I was in high school that this album truly became one of my favorites, and it remains so decades later.  Not least because the varied tracks on it pop up in conversation so frequently.

The best thing a potential client could ever say to me– aside from “shut up and take my money”– is “yeah, we could probably figure this out on our own, but we’d rather get it right the first time.”  Cue the soundtrack of my youth.

It’s applicable in Hague Service Convention usage because, even though you might get a second bite at the apple following a curable defect, you may not know there’s a problem until a year or two down the road.  That makes for irate clients and grumpy judges.

Of course, it sometimes can’t be helped.  Capricious foreign officials sometimes offer pretextual reasons for rejecting Hague Requests.  Discrete little details may derail an effort to serve a defendant with no notice– problems that blindside lawyers seemingly out of nowhere.

But a little diligent effort goes a long way.  Doing it yourself isn’t always a bad idea– but pretty frequently, you can be blindsided by a seemingly inconsequential detail. In short, get help.  Hire somebody to help you.

I don’t mean this to be sales-pitchy.  Really.  [The sales pitches are here and here.]

But practical reality necessitates bringing in some added expertise in many cases.  Just as a personal injury lawyer shouldn’t handle her own traffic ticket, or a tax attorney shouldn’t file his own contested divorce, plaintiffs’ counsel of all stripes should be wary of handling overseas service alone.  If you don’t hire me, consult some other attorney who does this sort of thing regularly.  Your client depends on your wisdom, and that might just mean bringing in some help with a nuanced area of practice.

 

 

I always thought the back cover was better, because “bottle o’ red…”
LaurMG via Wikimedia Commons.

Seriously.  It doesn’t exist.

At least, not in the common law world.  Sure, in civil law jurisdictions it might, depending on your definition of informality, but in those places, “informal” is a term of art, and it relies entirely on the defendant’s willingness to play nice with others.  Let’s be honest here– if the defendant were going to play nice, then he’d just waive and service wouldn’t be necessary anyway, formalities be damned.

The very nature of serving process– particularly from a due process perspective– requires at least a minimum of formalism.  Mullane says so.  Some examples:

  • Plaintiff’s counsel hires an agent or a sheriff’s deputy to hand documents to a defendant’s wife at their home.
  • An agent or sheriff’s deputy lays documents on the desk of a registered agent and then swears out an affidavit.
  • Plaintiff’s counsel specifically requests that the Clerk dispatch a mailer, requiring a signed receipt, in accordance with Rule 4(f)(2)(C)(ii).*
  • An absolute last resort: counsel publishes an advertisement in the legal notices section of the local paper,** if for no other reason than to “put the world on notice.”

All of these have some element of formality involved.

When your process server tells you that they can just have your overseas defendant served informally, they don’t know what they’re talking about.  What they really mean is that, depending on the foreign country, you may be able to avoid involving a foreign government ministry by engaging a “competent person” under Article 10 of the 1965 Hague Service Convention.  It’s still formal, and if they don’t recognize that, be afraid.

* I still argue that mail service is a bad idea.  That doesn’t make it informal.

** Yes, yes, I know.  Nobody reads the legal notices section in the paper anymore.  To be sure, nobody reads THE PAPER anymore.  Even in 1950, service by publication was a legal fiction, and that was one of the Mullane decision’s biggest issues.

Brandon Grasley via Wikimedia Commons.

[Details have been changed to protect the innocent.  Some variant of this story happens routinely— at least every couple of months.]

A few weeks ago, I received a Hague Certificate following a request that I’d sent on a client’s behalf to a foreign Central Authority. Essentially, it said, hey, Aaron, thanks for playing– we served your defendant on February 30th, so go get ’em.  My client filed it in fairly short order and all seemed to be well.*

Opposing Counsel filed a responsive motion, asking the court to reject the proof provided by the foreign Central Authority, insisting that only an affidavit would do, and that the Hague Certificate that we’d filed was insufficient under the Federal Rules of Civil Procedure.  O.C. cited Rule 4(l)(1), which is crystal clear that an affidavit is required to demonstrate proper service.

(l) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

It’s crystal clear if you stop reading there.

My client asked me whether I thought she should respond gently & diplomatically, or with a bit of vitriol.

Oh, vitriol, for sure, said I.  Tell opposing counsel that he should READ THE ENTIRE RULE.**  Because, oops…

(l) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(I put that stuff in bold because, good grief, man, don’t be daft.)

Even if Rule 4(l)(2)(A) didn’t specifically go there (or if state rules mandate a particular form and ignore “Outside the United States” altogether), the text of the Hague Service Convention sets out the requirements anyway and, thanks to that pesky old Supremacy Clause, that’s pretty much it.  To suggest otherwise is… well, silly.

Here’s what the Convention says about proof, in Article 6:

The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.

The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.

(Emphasis mine again.)  Pretty straightforward, huh?

Defense counsel, when I said to always question the validity of Hague requests, I meant to go deeper on the U.S. side– make sure that the request is valid.  Stop making arguments that just make your work look slipshod.  Even if you’re in state court, where the rules aren’t so abundantly clear, the Supremacy Clause still punches you in the throat, so just… stop it.

* All of my clients are lawyers.

** A lesson from law school that we often forget:  keep reading.  This is particularly applicable with regard to Rule 4(m) and service outside the U.S.  If the clerk’s office tells you the case is going to be dismissed because you haven’t effected service by the 90-day deadline in 4(m), tell them to read the entire rule.

Yabba. Dabba. Doo.

“The defendant works at…”

Hmm.  Do you happen to have a home address?

“No, just his office.”

Let’s hope he’s there.  And that we can get in the door…

That exchange happens between lawyers and process servers daily.  And it’s a challenge, because defendants can’t be served by substitution at their place of business.  Under most courts’ rules, they can be “sub-served” at home, usually by delivery of the documents to “someone of suitable age and discretion who resides there” or some variation on that theme.*  In other words, even if Fred isn’t home, you can still effectively serve him by handing the summons & complaint to Wilma.  (Pebbles is just a toddler, and doesn’t really talk.  Besides, she’s not even tall enough to answer the door yet.)

Likewise defendant Barney.  He’s not home, but if Betty answers the door, you’re on solid ground.  (Avoid Bam-Bam.  That kid’s dangerous.)

But you can’t get Fred or Barney by handing the docs to grumpy Mr. Slate down at the gravel pit.  If they’re having lunch down at the Water Buffalo Lodge when your stone tablet server rolls up, you’re out of luck– unless the server knows the secret handshake.

I’ll stop with the Flintstones analogy, but notice something… I haven’t once mentioned the Hague Service Convention, which is the centerpiece of this blog and the primary reason for its existence. Why?  Because the challenge is the same wherever you go.

The story is critical going across borders, because the conversation up above happens more frequently between me and my clients than you can imagine.  It’s even more important to have a home address for defendants offshore, for several reasons:

  1. Officials in civil law jurisdictions are more sensitive to defendants’ privacy than are common law process servers.  As such, they prefer to serve at a residential address if for no other reason than to save Fred & Barney some embarrassment.
  2. Just like here in the U.S. and Canada, if the defendant isn’t actually at the workplace when the serving officer shows up, that officer isn’t going to just sit in the lobby and wait.  Even your local process server won’t do that without an extraordinary run-up in costs.
  3. You don’t get to dictate to foreign authorities how & when to serve.  You can only indicate where the defendant can be found.  In the U.S. and Canada, we can direct our process servers to go back and try again or to attempt a different address, but we don’t have that luxury “over there”.  Simply put, you’re not going to tell a Swiss bailiff or Chinese court official how to execute his duties.  It just doesn’t work that way.**
  4. The “someone of suitable age and discretion” requirement may not even pop up.  In some jurisdictions, the docs can just be slid into the mail slot, or the officer will slap a Post-It note on the door telling the defendant to come and get his documents at the Post Office or local police station!

It’s a harsh reality, but this is a problem both at home and abroad.  Hague rules don’t mitigate the problem.  If anything the problem is exacerbated.  If you can get a home address, do it.  It may not be the end of the world if you can’t, but a home always presents better odds.

* Fed. R. Civ. P. 4(e)(2)(B), in case you’re curious.

** It’s truly baffling– clients routinely say to me (with a straight face, no less!) to “just tell the Chinese to (do XYZ…).”  I even had opposing counsel make that argument in a hearing once.  The judge audibly giggled.  IT DOESN’T WORK THAT WAY, FOLKS.

Author’s Note:  This post was almost about The Munsters, but Fred is just funnier than Herman.

Then again…

Herman Munster went to law school?!
Federal Courthouse, Sioux City, Iowa. I worked in that building for three years back in the Ice Age. (GSA Image)

Y’all, if you know you’re going to be removed, just initiate the case in federal court to begin with.  It’ll save everybody involved a whole bunch of time and headache.

Lots of plaintiffs’ lawyers gasp when I say that.  They look at me like I have three heads.

  • “Are you nuts?”
  • “Oh, you’re a comedian now?”
  • “Clearly, you’re an idiot.”

I certainly understand why they react that way.  State juries are kinder to plaintiffs, generally speaking, than federal juries.  And it makes perfect sense to go where your odds of success are better.  But the reality is, if you’re going to get yanked to a federal venue anyway, you’re a whole lot farther ahead to file there at the outset.

Look, I’m an AAJ member for a reason.  I’m a plaintiffs’ guy.  I like holding defense lawyers’ feet to the fire.  A huge part of what motivates me in this business is playing a small part in making injured parties whole, whether that injury is physical/emotional, financial, or constitutional.  And nine times out of ten, I’ll agree with you that state court is a better place to be than 40 Foley Square.

But purely from a service of process perspective, when you have offshore defendants, it’s a whole lot cheaper, a whole lot easier, and a whole lot less complex to operate under Fed. R. Civ. P. 4.  Several reasons:

  1. Time.  You’ve got a friend in 4(m).
  2. Certainty.  Rule 4(f)(1) specifies the application of the Hague Service Convention.  Thanks to Schlunk, you don’t have a choice in the matter, but you won’t have to argue with the judge when you can simply cite that rule.
  3. Flexibility.  If the Convention isn’t applicable, 4(f)(3) lets you serve electronically.
  4. Savings.  Notice pleading keeps translation costs down, while those of us in fact pleading states have to submit volumes, lest we waive a particular argument.

If you practice in Missouri and have ever scratched the surface of Rule 54, you know that the state’s rules on service of process aren’t incredibly well thought-out.  Or they may have been well thought out in 1973, but they haven’t gotten a deep-dive review in quite some time, so they really don’t reflect the realities of life in the 21st century.  When a client calls me from St. Louis or Cape Girardeau, I know that just getting a summons issued could be a massive pain in the neck.

Contrast this with the likes of Colorado (among other states), where the Supreme Court has substantially adopted the Federal Rules of Civil Procedure– not verbatim, but in large measure.  I know that litigators in Denver or Grand Junction aren’t too hassled when it comes to process, and I know they’ll enjoy the same operating system in either venue.

Now, if you can destroy diversity and think you have a better shot in state court, by all means– tee it up.  But if federal venue is inevitable, save yourself some turmoil in the beginning.

 

Since the beginning, the primary purpose of this blog has been to educate the practicing bar on the practical application of the Hague Service Convention.  While we’re happy to give away the recipe to the Special Sauce (there’s no secret about this stuff, really), we’ve been lucky to have a whole bunch of great people trust us to handle their Hague Service Requests from start to finish.  Many of them find us through the Hague Law Blog, the readers of which usually fall into one of three categories:

  1. Academics/students researching practical procedural matters,
  2. Do-It-Yourself-ers who need to serve defendants located abroad, and
  3. Clients of Viking Advocates (or those who are about to be our clients).

I have argued, also since the beginning, that a DIY approach to Hague Service is risky and potentially far more costly than it might seem, so today we’ve got some exciting news for the folks in the second category: you’re no longer on your own.

We’re excited to announce the launch of HAGUE ENVOY, a new platform designed for practitioners who still want to handle their own Hague Service Requests, but who don’t have the time to research all of the ins & outs of the Convention.

We’ve already done the research and pulled multiple countries together in a single application, and we’ve lived in the treaty for years, so the ins & outs aren’t new to us.  The result: lawyers and court officials can now focus on the substantive matters in a case rather than procedural hurdles.

It’s as simple as we can make it. Pop into the platform and pay the fee, answer a battery of questions, and in ten or twenty minutes, you have a completed request form (or forms… it’ll handle multiple defendants in multiple countries).  We’ll also provide guidance on what to do with the form in a specific, step-by-step format.

And along the way, if we spot a quicker and easier avenue to go down, we’ll let you know.

To be sure, Viking Advocates is still here for you, but if you definitely want to handle things on your own, Hague Envoy can be a handy tool for your workbench.

(My contact info is in the upper right ↗↗↗  if you’re on a desktop.  It’s down below ↓↓↓  if you’re on a phone or tablet.  Just sayin’.)

Buckinghamshire County Council, Ros Tyrrell, via Wikimedia Commons.

Yet another “FAQ” post, if you will…

“Hey, Aaron, the complaint is under seal, and the judge has ordered me to instruct the process server that he’s under the same obligation as I am.”

I respond: Well, that’s all fine and good, if you’re using private agent service in a country that would enforce the seal.  But Article 5 service via a Central Authority?  In a word, fugghetaboutit.  Once this thing goes overseas, all bets are off.

See, the seal has absolutely no coercive effect on a foreign authority except under the doctrine of comity, and it really has no practical effect on a private agent overseas.  At least, not one who isn’t somehow accountable to the court, and isn’t in a country that would enforce the seal.

With agents, ultimately, it comes down to trust, and that’s not the end of the world.  If the agent understands the gravity of the situation, and the real, palpable concerns that prompt the seal in the first place, you’re going to be okay.*

But when you involve foreign government & judicial authorities, all we have to go on is an argument that (1) U.S. courts would respect a judicial seal ordered by a foreign court, and (2) our courts have done so before, so (3) would you keep things under wraps, Monsieur le Juge, s’il vous plaît?  Pretty please?

Foreign officials are under no obligation within the Hague Service Convention to keep things confidential.  And in many places, sadly, Hague requests are handled by low-level bureaucrats at some point in the chain of custody** and they have zero motivation to keep things under wraps, especially in response to a U.S. judge’s edicts. What effect that has on the procedural posture of the case, I cannot say, but the court must understand that its authority to dictate terms ends at the shoreline.

* The agents I work with get it.  They understand the seal and they understand that, although they may not suffer any legal penalties in their home jurisdiction, they’ll never get another job from me.  But if I don’t have a trusted agent wherever you need to serve, I won’t even make assurances, much less guarantees.  Simply put, I can’t guarantee anything once the documents go abroad.

** For lack of a better word.