PAY ATTENTION TO WHAT THIS WOMAN SAYS.

Yet another one popped up on the old radar (Google news alerts) yesterday… a National Law Review article highlighted Victaulic Company v. Allied Rubber & Gasket Co., Inc. in S.D. Cal., but the author’s conclusion was far too optimistic for plaintiffs seeking a way around the Hague Service Convention.  The court there held that service by electronic means on a Chinese defendant was perfectly acceptable under Rule 4(f)(3) because electronic service isn’t prohibited by international agreement.  My (internal scream) response to that:  WRONG.

Wrong wrong wrong wrong wrong.

(You should sense a rant coming.)

In the case of China (and Mexico and Germany and Switzerland and… I could go on), electronic service is most certainly prohibited by international agreement.  Says who?  Says Sandra Day O’Connor, who (unless they’ve been living under a rock for four decades) lawyers have heard of.

She doesn’t say it specifically, but the conclusion is crystal clear– I am continually astounded by courts’ complete disregard for the “secondary” holding in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).   Reading these lower court opinions, it’s as if not a single lawyer in the room has taken a truly thorough read of the Schlunk opinion in determining what is and is not valid service abroad.

Schlunk‘s primary holding:  adherence to the Hague Service Convention is mandatory where it applies.  486 U.S. at 699.

Secondarily: the Convention’s list of service methods is exclusiveId. at 706– and again at 710.

Now, last I checked– and correct me if I’m wrong here— U.S. Supreme Court precedent, especially entirely settled precedent, ranks higher on the hierarchy of authority than the Federal Rules of Civil Procedure.  I’m sure I read that somewhere in law school, but that was a while ago.

District courts routinely contend that 4(f)(3) is on equal footing with 4(f)(1), and in the case of the Inter-American Convention on Letters Rogatory (IAC), that’s true.  The IAC isn’t a mandatory/exclusive treaty.  THE HAGUE SERVICE CONVENTION IS.

The source of all this turmoil?  Likely Gurung v. Malhotra, which Ted Folkman ably covers in detail over at Letters Blogatory, and which I won’t rant on any further in this space.  Suffice to say that Gurung, and apparently now Victaulic, fail to consider the plain meaning of Justice O’Connor’s words:

(…) the Convention prescribes the exclusive means for service of process emanating from one contracting nation and culminating in another.

Judge Benitez’ Order in Victaulic relies on the seminal case on electronic service, Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007 (9th Cir. 2002), in placing 4(f)(1) and 4(f)(3) on an equal footing.  But missing in the analysis is that Rio Properties didn’t implicate the Hague Service Convention.  The defendant there was in Costa Rica… a non-Hague country.*  From Rio at 1015…

(…) no language in Rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means.

That’s an accurate statement.  Nothing in 4(f) indicates a preference for any of its three subsections.  BUT SCHLUNK DOES.  AND SO DOES THE SUPREMACY CLAUSE.  The mind reels.

To be sure, this doesn’t mean it’s game over for the plaintiff.  Article 15 is in force for China, so a default judgment is acceptable under the Convention.  Of course, that doesn’t clear the Due Process hurdle, but 4(f)(3) methods can be used to vindicate the defendant’s rights under MullaneNot to serve in a strict sense– but to provide reasonable notice.


* Accurate as of 2002.  The Convention entered into force for Costa Rica some fourteen years later.  The 9th Circuit pointed out the non-applicability of Hague strictures in footnote 4!


Another issue worthy of a rant… the Victaulic Order also grants the plaintiff a sixth extension of time to serve.  The first extension was wholly unnecessary, because Rule 4(m) specifically exempts service on overseas defendants from its own 90-day deadline.  I’ll leave it at that.

A quiet passageway in Spoleto, Umbria.  I snapped this while gallivanting across Italy with some colleagues on a CLE junket.  The best way to earn your hours, folks.

One immutable truth looms over everything I do: if you can’t tell me where your defendant is, I can’t get him served for you.*

I couldn’t be more serious– “where?” is the most important question I ever ask a client.  There are precisely four variations on the answers.

  • We know where he is.  (And that knowledge is ultimately proven correct.)
  • We know where he is.  (But the information is ultimately proven wrong— or changes by the time a foreign authority gets around to serving.)
  • We think he’s in (X country), but aren’t sure.
  • We have no idea.  We just know he’s out of the country.

Each of those answers presents, at once, different challenges and opportunities.  Let’s take a look at each in turn; none of them have to mean the end of the world.


(1) We know where he is. (ultimately proven correct)

A solid address, authenticated by a corporate registry** or some other source, and hopefully validated by Google Maps, is the best way to ensure that service is effected.  It may not be incredibly quick, depending on the country, but a confirmed street address is absolutely critical to valid service, whether under the Hague Service Convention or other non-treaty methods.  This typifies the vast majority of the cases I handle, usually because my clients (all lawyers) have done their homework and pinpointed the defendant’s location.

Assuming the paperwork is in order and the serving official (or “other competent person”) is doing his job properly, it’s a slam dunk just about every time.

This is the best case scenario, but the challenge often lies in cost and time spent waiting for proof to come back.


(2) We know where he is.  (ultimately proven wrong/changes)

This is actually the worst case scenario, because if the information turns out to be wrong, that cost and time are somewhat spent for naught.  A litigant or counsel spends thousands of dollars and many months waiting, just to learn from the foreign Central Authority that “the defendant has moved and no further information is available.” **  If credible sources tell you at the beginning that the defendant is domiciled at a particular address, there’s really little choice but to try getting to him the regular way.  It’s incredibly frustrating.

But all is not necessarily lost.  This situation actually opens up the same opportunity as #3 and #4… read on.


(3) We think he’s in (X country), but aren’t sure.

Here, we’ll have to get creative.  The most creativity I’ve ever seen came out of the Southern District of New York two years ago, when a plaintiff was granted leave to serve a foreign defendant via Twitter.  No joke.

As long as the Hague Service Convention doesn’t apply, there is no prohibition to electronic service under FRCP 4(f)(3).  By its own terms, right up front in Article 1, the Convention is inapplicable “where the address of the person to be served with the document is not known.”

Focus on the word “known” for a moment.

Sure, in some places such intel might be enough to serve him personally via Article 10(b) within a matter of hours [I’m looking at you, Canada].  But for a standard Article 5 Request, significantly more certainty is critical– especially if the defendant is itinerant.  Trying to go through a foreign government agency without an actual address… fuggedaboutit.  It ain’t gonna happen.


(4) We have no idea. We just know he’s out of the country.

Good.  Hopefully the fellow is gallivanting across Europe in a used VW microbus, regularly posting selfies from famous landmarks on Instabook or Twitlink**** or some other social media platform.  As with the S.D.N.Y. case, just get leave of court to serve him via Instabook or TwitlinkThis is the “how to not have to hire Aaron” method.

Otherwise…

Fuggedaboutit is spelled differently in Brooklyn’s street sign shop.

* I use “him” instead of “him/her/it” for simplicity’s sake.  Using “him/her/it” frequently would annoy you, I promise.

** I heartily recommend registry searches where an entity defendant does not publicize its domicile address, especially in the Far East.  Sadly, even though we may have a registered address, certain countries’ procedures take so long that a defendant really does move between submission and the attempt at service.

*** Note my glowing review of that place.

**** I made those names up.

Pernillan — via Wikimedia Commons.

And most of them have been all along.

Aside from a few notable blips (such as Italy and Spain, which bore the earliest surge of Covid-19 cases in the west, and India, which has been pummeled), Hague Central Authorities around the world kept doing the job even through lockdowns and quarantines.  Commentary that I still get from clients and prospective clients is simply baffling.

“I had a process server tell me that Central Authorities are closed and that nobody’s doing anything.”

(So Aaron shakes his head.  Again.)

No.  Just… no.

For starters, go beyond your process server and talk to actual lawyers who deal with cross-border procedure daily. 

I’m not the only one who will tell you that, while things may have slowed down, Hague Service Convention requests only ground to a halt in a few select places– including the United States for a while.*  By and large, the wheels of Hague justice continued to turn amid the quarantine, and continue to turn today.

No, really– the rest of the world has actually taken monumental steps to curtail the spread of the novel coronavirus, and just about every country on the planet is doing a better job of it than we are, by any credible metric.**  In a Washington Post op-ed last week, American academic Timothy Searchinger highlighted the dramatic differences between America’s response and the efforts taken by the rest of the world, notably across the Atlantic.

The French lockdown was severe. People were only allowed out, after filling out a form, to take care of elderly relatives or to go grocery shopping. To buffer the economic impact, the government directly paid a portion of salaries for those who could not work. And, voila, it worked. (…)

France and the rest of Europe are just showing what grown-up governments in well-off societies do, which makes our U.S. disaster all the more painful to watch (and for me to rejoin next week, alas).

Oddly enough, I used to predict that France could take 4-5 months from submission of a Hague Request to send a proof back to me.  A dispatch I sent to Paris in early June was back in just five weeks.  I was astounded.

So yes, they’re still open– even Italy, Spain, and India– albeit with a massive backlog, I’m sure.

Go forth, counselor.  (Or tap me on the shoulder and let’s get your defendants served.)

 


* The U.S. Central Authority is back up and running for Hague Requests nationwide (as of last week).

** By credible metric, I mean number of cases, percentage of positive tests, and the death rate.  Sure, there are outliers, but don’t pop any corks because Russia and Brazil are doing a worse job than we are.

A Dissatisfied Litigant, 1845, by Honoré Daumier (1808-1879).

Most people understand that attorneys’ ethical rules prohibit us from advising another lawyer’s client because it can so easily interfere with the attorney-client relationship.  More difficult to explain, though, is why I cannot help individuals who pursue legal action in courts of law on their own.  Hopefully, this will clear things up a bit.

These folks pursuing redress on their own are called pro se (prounounced “pro-SAY”) litigants, and their lack of counsel has no bearing on the validity or magnitude of their claim.  Indeed, there are thousands of individuals who simply cannot afford a lawyer or do not qualify for assistance from Legal Aid organizations or other services.  Absent a lawyer, no attorney-client relationship exists, so I can’t interfere with it.

Still, there are two very specific reasons why I still can’t talk to you, except to determine what you need and help you find someone:

  1. Unless you’re in Missouri, I’m not licensed in your state.  If you’re outside the land of Harry Truman and Mark Twain, and I comment in depth on a question surrounding your unique circumstances, then somebody might think I just became your lawyer.  And I’m not willing to risk a charge of Unauthorized Practice of Law… and the resulting loss of my Missouri license.
  2. Even if you are in Missouri, odds are that I don’t have sufficient expertise to properly advise you on the breadth of your situation.  I’m pretty much a one-trick pony– and while it’s a great trick, you need more than the trick I offer.  If I propose a specific plan or comment on a question surrounding your unique circumstances, then somebody might think I just became your lawyer.  And I’m not willing to take on that responsibility– just like your pediatrician friend from church won’t perform your coronary bypass surgery.

Now, lest someone think we lawyers are all like Henry Hill* and friends, it’s not about money.  I give knowledge to litigants– free of charge– all the time… I just do it through their lawyers.  That’s the way it has to be.

An email I received a few weeks ago illustrates the dilemma (and this precise situation is common).  The fellow asked a straightforward question about a procedural rule.  Right up my alley, for sure.  I was confident that I had enough information to reach a conclusion, but my Spidey-Sense told me that the fellow asking the question was a non-lawyer.  Most lawyers would know the answer, though many still ask, just to confirm their thinking.**

A quick Google search confirmed that my Spidey-Sense had not let me down.  The guy seemed pretty sophisticated, but he was definitely a “civilian”.  So…

I’d be happy to help– have your attorney give me a shout and we can hammer out a strategy pretty quickly.

“Nope.  I’m pro se.  I just need to know if I can do (XYZ).”***

Sorry, friend.  I can’t advise you directly.  You’ve got to have an attorney for me to be involved in guiding you.

“I didn’t ask for advice,” he said.  “I just want to know about the fact of (XYZ).  You ambulance chasers are all alike.”

See above.

 


* To paraphrase, “Business bad? Tough, pay me. Oh, you had a fire? Tough, pay me. Place got hit by lightning, huh? Tough, pay me.”

** Imposter syndrome kicks me in the head regularly.  As such, I contend that there’s no such thing as a stupid question.  Better to ask and be right, than not ask and be wrong.

*** Specifically calls for a conclusion of law.

News dropped last week that Austria has, at long last, ratified the Hague Service Convention, which will enter into force on September 12.  Its declarations are yet to be posted to the very excellent HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention.  Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods (how this plays out relative to FSIA service rules remains to be seen… I doubt it will be very controversial, but easy to fumble).

So, how do you effect service of process in Austria?  Well, for the moment, the same way it’s been done all along: a Letter Rogatory, or in the case of government defendants, delivery via diplomatic channels with a translation and Notice of Suit.  In about eight weeks, the Convention kicks in and, judging by the declarations, things will work in pretty much an identical fashion as in Germany… but without decentralized authorities.

As such, until early September, I recommend that all service attempts on Austrian defendants be held, in order to avoid the astronomical costs of Letters Rogatory.  Trust me– you’ve got time, if we plan things the right way– and it will ultimately be faster anyway.

I give you… phở, (pronounced FUH, as in “fun”)  the most amazing bowl of soup in the solar system and, coincidentally, the national dish of Vietnam. North or south, it’s amazing.  No, really– love yourself enough to eat this stuff on the regular.  Codename5281 via Wikimedia Commons.

For most of my childhood, Vietnam was considered an enemy state– run by a totalitarian regime worthy of America’s scorn.  My parents’ generation fought a brutal war there, and endured a bitter division about that war here at home.  The whole idea of Vietnam was a painful wound in our nation’s psyche.  Mercifully, that changed in 1995 when Senator John McCain (R-Ariz.), who had spent seven years as a prisoner of war in the infamous “Hanoi Hilton”, argued successfully that we should normalize relations.  It was (and remains), after all, a country filled with amazing people and a culture that goes back millennia.  [Around the time President Clinton did normalize relations that same year, I discovered my all-time favorite lunch at a great little family joint in my hometown.  See above.]  But I digress.  On to business…

Since October, 2016, serving process in Vietnam has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas, at least, not with any coercive effect.  Repeat after me—you can’t just SERVE a subpoena in Vietnam.  You have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Vietnam is not party to the Hague Evidence Convention).  The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.

Now, here’s how it’s done in Vietnam:

Article 5 Service

  • Translate the documents, and provide a signed certification from the translator. Vietnam’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
  • 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 in Hanoi.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, provided the delivery requires a signed receipt, but I’ve always argued that it’s a bad idea anyway for precisely that reason.  If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • Engaging “other competent persons” under Article 10(b) or 10(c)?  Nope.  Sorry.

Seriously—that’s all there is to it in Vietnam.  The method is straightforward and simple.

Vietnam’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

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.

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

Always keep in a safe place… especially if there’s a chance the holder might be abducted.

[The TL;DR of this post: get in touch with Melissa Kucinski for help in international abduction cases.]

Well over two years ago, in “The Hague Child Abduction Convention applies first” I posted a bit about that Convention’s primacy when a lawyer calls me for help in serving process in custody actions.  Where a parent has taken his/her child(ren) abroad contrary to the other parent’s wishes, or wrongfully retained the child(ren) abroad, merely pursuing a custody order in the U.S. is rarely the right first step.  From that post:

An attorney called me last week from Chicago.  He said that his client’s five year-old son had been plucked out of Illinois by his father and taken to the father’s home country, Poland.  The lawyer’s two questions:  (1) how quickly can I get the father served with a summons and custody petition under the Hague Convention, and (2) how difficult will it be to get the Polish courts to enforce the order once Cook County issues it?

Well, to answer your questions, (1) a few months, and (2) it’ll be difficult and costly. 

But those aren’t the right questions.  If I read you correctly, the primary objective is to get the child back, right?  (“Of course,” replied he.)

Then I have some good news for you.

I went on to describe how there’s no single “Hague Convention”, and offered that the Hague Child Abduction Convention (“the 1980 Convention” in common Hague parlance) provides certain speed and immediacy that the Hague Service Convention (1965) cannot.  Sure, it may still be necessary to implement the 1965 Service Convention for the divorce & custody proceedings that follow (and that’s where I come in) but if the objective is the child(ren)’s immediate return to the U.S., faster and less costly mechanisms are in place.

The even better news that I’ve been able to give lately is that we have a colleague who is significantly more knowledgeable than I am when it comes to this particular treaty and its operation.  Melissa publishes an outstanding blog on a range of cross-border family law issues, so I can unreservedly direct inquiries her way.

Every once in a while, when a colleague is stymied by limitations to serving an offshore defendant, the thought comes to mind that “hey, I might try to get leave of court to serve the defendant’s U.S. counsel.”  It’s a great idea, and if the judge signs off on it, I don’t see how it could be unreasonable under the Mullane standard.  Getting to that point, though, is often done in an entirely wrong way: using FRCP Rule 4(f)(3) as a basis for the motion.

Why is that entirely wrong?  Because 4(f)(3) doesn’t apply if service doesn’t take place abroad.

Rule 4. Summons

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(3) by other means not prohibited by international agreement, as the court orders.

Instead, the basis for granting leave to serve a defendant via U.S. counsel comes from either 4(e)(2)(C), in the case of individuals, or 4(h)(1)(B) in the case of entities.  Both say essentially the same thing…

in a judicial district of the United States:

… by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

A whole bunch of very flawed case law uses 4(f)(3) to order service on a defendant’s lawyer here at home, and it makes me scratch my head every time.

Sure, 4(f)(3) is a great basis for leave to serve electronically, as long as it doesn’t conflict with the destination country’s declarations to the Hague Service Convention.*  But it simply makes no sense as a basis for serving U.S. counsel.  It literally defies logic and the plain language of the rule.

In a judicial district of the United States… or not within any judicial district of the United States.  The geographic distinction goes to where service takes place, not the defendant’s citizenship or domicile.


* Ted Folkman has extensive commentary on the highly flawed Gurung decision and its just-as-flawed progeny over at Letters Blogatory.  I won’t belabor that point here, except to say that it’s a very very very very very bad decision.

User Beneffin via Wikimedia Commons

For most lawyers human beings, it’s been a goofy three months (we’re now well into the Covid-19 pandemic).  Amid the quarantine, I’ve been incredibly fortunate to see my firm’s workload go up, but millions of my fellow Americans, including a whole bunch of lawyers, have seen their income and savings vaporize in a matter of hours.  Even as I’ve gotten busier, I’ve begun to more diligently follow the advice of one of my favorite law professors, who insisted that a good attorney absolutely must read the news, religiously.  I quit being a newshound some time ago, but lately, that has come to seem more irresponsible every day.

Enter the New York Times, which made me an offer I couldn’t refuse back when this sinister little microbe was hammering the greatest city in the world.  A more recent, awful headline ran on June 18, just as the Empire State started to get things under control:

A Tidal Wave of Bankruptcies Is Coming

“A run of defaults looks almost inevitable. At the end of the first quarter of this year, U.S. companies had amassed nearly $10.5 trillion in debt — by far the most since the Federal Reserve Bank of St. Louis began tracking the figure at the end of World War II.”

Disconcerting, to say the least.  It dawned that I’m about to get busier as the pandemic drags on, especially as more and more large entities go under.

Now, for me to say I’m an expert in corporate bankruptcy law would be like saying I can hit a major league fastball.  Sure, I understand the physics involved, and I know the mechanics it takes to connect Wonderboy with Mr. Spalding and put the thing over the fence (going “yard” as they used to say).  But I don’t have what it takes to do it.  I leave it to the experts– many of whom I’m fortunate to call my clients– and the folks this post is directed toward.

What I do know about corporate bankruptcies is that there’s a thing called “preference payments” looming over the procedure.  At first, I didn’t know what that meant exactly, and looking it up didn’t help much.  So a kind client put it in terms I could understand:  in the months leading up to bankruptcy, a debtor can’t pay its “preferred” creditors, but not pay others, because doing so puts those others at a disadvantage.  Payments made to any creditors within 90 days prior to filing may be subject to clawback under the preference payment doctrine.

Pretty reasonable, I would think.  And how do those payments get clawed back?  By an adversary proceeding connected to to the insolvency procedure itself.  The trustee literally sues the creditors (who were paid previously) for the return of those payments.  A regular bankruptcy summons is issued, and the creditor has to show up to defend against the claim, lest he/she/it be held in default.  Y’all in the bankruptcy bar know all of this.

But what if a creditor is in, say, Japan, or China, or France
Easy.  The Hague Service Convention kicks into gear…

… and the action must be served just like any other civil suit in a U.S. court.  That means particular rules are in place that don’t apply if the creditor is in Chicago or Fargo or Buffalo.  See here for the methodology…  but heed a particular caution: modify the summons well before you throw out the first pitch in the service procedure.  And make sure you do it the right way.  Fail either, and you’ve got yourself a natural disaster.

In a single day last week, Week Ten of America’s Covid-19 quarantine, I fielded essentially the same oddly segmented inquiry from three different lawyers across the country.  A rather disconcerting inquiry, to say the least.

“Hey, Aaron.  I’ve got an overseas defendant to serve.  I’ve talked to some process servers who tell me that you can’t personally serve anybody overseas right now, so I should just serve by mail.”

When I interject to tell them that, no, that’s a bad idea…

“But they say the Water Splash decision makes it okay.  That’s right, isn’t it?”

Oh, where to begin?  No, no, and no.

I can’t decide which segment of the discussion is more problematic, so I’ll just tackle them in the order they came to me.

(1) I’ve talked to some process servers…

By and large, process servers are awesome.  I work with some great ones.  They’re a heck of a lot more cognizant of the challenges of field work than I am.  And if I need to serve somebody in Temecula, California or Glen Burnie, Maryland, I can pretty much count on their judgment as to how things are usually done in those localities.  But unless they’re barred, I cannot take legal advice from them.  Ever.  Neither can you.  [That’s what segments 3 & 4 get into, so bear with me a moment.]

I’ve argued for years that attorneys should outsource the work that lies outside their bailiwick– especially their international work.  They should bring in somebody who has particular knowledge and can tell them where the landmines are buried.  But that outsourcing must be done advisedly.  Our ethical obligations demand that we not only vet the commentator, but the commentary itself.

(2) who tell me that you can’t personally serve anybody overseas right now…

No.

The suggestion that Covid-19 has stopped service around the world is flat-out wrong.  Incorrect.  Untrue.  False.

The global quarantine has not shut down the world’s system of service, any more than it has brought American justice to a complete halt.  Sure, just like many/most U.S. courts are closed to in-person proceedings, some Central Authorities have closed down (entirely or in part) or temporarily suspended the processing of Hague Service Convention requests.  But many are still fully operational and are handling requests in a relatively normal manner.  Many foreign process servers and bailiffs may have ceased or reduced operations, but others are still hitting the pavement and working.

Even if these folks are shut down right now, they’re going to re-open, so it makes sense to get a service request in the pipeline as soon as possible.

(3) so I should just serve by mail.

No.

Except in the rarest of cases, mail service is a bad idea to begin with.  And right now, even where it might be legally valid, it’s never been more difficult to prove service factuallyA bad idea has become even worse since couriers stopped requiring signatures due to Covid-19.  The suggestion that this is a good idea…

Bear in mind, the “just mail it” suggestion is a legal recommendation, and it’s posed by someone who isn’t licensed to advise you on legal strategy and tactics.  And even if they are qualified, it’s bad advice, especially in the dark days of May, 2020.

(4) But they say the Water Splash decision makes it okay…

(Here’s the really horrific part about listening to the unqualified.)

No, y’all, Water Splash doesn’t make mail service okay.  All the decision did was resolve a very silly circuit split focused on an ostensible drafting error in Article 10(a) of the Hague Service Convention.  Justice Alito’s opinion says mail service is acceptable under 10(a) provided certain conditions are met.  Fail to satisfy any one of those conditions, and you’re sunk.  The fact that much of the world is locked down doesn’t make those conditions go away, and Article 10(a) doesn’t confer any magical powers on mail service if it’s invalid under forum rules (or handled incorrectly) in the first place.

(5) That’s right, isn’t it?

See above.

Still, there’s some relief in the question.  I’m exceedingly happy that my fellow table-pounders were skeptical enough to inquire.  They’re appropriately curious, duly diligent, and seeking out answers to unfamiliar questions in a tough legal environment… likely from their erstwhile garage (now ad hoc home office), with kids bugging them about their chores or demanding a Popsicle.

That begs the question, though– how many lawyers are not asking fellow attorneys with specific knowledge about those areas outside their realm of expertise?  How many are sticking to the “just mail it” approach, as they might to serve in Chicago or Missoula?  How many are truly seeking learned counsel about service abroad, instead of just taking the process servers at their word and getting an incorrect answer to an otherwise straightforward question?

– – – – – – –

Truly, I don’t mean to malign professionals in any field, especially not right now.  I’m certainly not so without sin as to cast a stone.  But when clearly bad advice is being handed out like Skittles in October, I have to remind my fellow attorneys that it’s clearly bad advice.  Don’t take it without a grain of salt.

Service is happening, and even if it’s not happening yet, it will.  Let’s get to work on it together.