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.

 

American Cemetery, Normandy.  (Photo by the author.)

My inbox is oddly flooded this morning.  Not with the usual client inquiries (it’s a holiday, after all), but with the normal spate of promotional emails and law firm newsletters I’ve come to expect on most statutory days off.  Sure, we’ve commercialized the heck out of every holiday, but that’s happened for centuries.  For retailers and restaurants to market their wares and fares on such days becomes much less bothersome as I get older.  What is more bothersome every year is the habit of wishing the recipient a “happy” Memorial Day in the subject header.

A “happy” Memorial Day is impossible, because no joy can be taken in the sacrifices of more than a million men and women killed in America’s many battles over our roughly 250 years.  Yes, we can rejoice at the fruits of those sacrifices, most notably the freedoms we simply take for granted.  Yes, we can smile at the laughter of the children and grandchildren of a soldier killed in action.  We can appreciate the fact that, at least for the time being, we don’t face an existential threat from a foreign army.

But Memorial Day is not a happy holiday– nor is it sad.  It is cause for solemn remembrance of lives given in the cause of liberty.

 

 

“The Sword of Damocles”, Richard Westall (English, 1765-1836)

Every once in a while, a colleague will call me with a story similar to this one:

“A client just walked into my office three days ago with what looks to be a rock-solid case.  We can establish duty, breach, causation, and damages* without a whole lot of difficulty, but the defendants are in Beijing and Toronto.  The statute of limitation runs next week, so we’ve GOT to get them served before then or we’re out of luck.”

Relax, I say.  Get your complaint on file and you’ll be fine.  Toronto we can get done pretty quickly, but Beijing could take a year or more.  The court is just going to have to let you do your job.

“But if we don’t get them served by the time the statute runs, we’ll be dismissed… with prejudice!”

No, you won’t.  You’re on solid ground as long as you file the claim before the statute runs.

See, statutes of limitation(s) require a claimant to initiate proceedings before a certain time expires.  They don’t require service of the action on a defendant, because, in all but a handful of jurisdictions, service of original process can only happen after the proceedings are initiated.  And that service is subject to different time requirements than the statute of limitations might lead you to believe.

A few years ago, I opined in this space that there is no such thing as a service of process emergency.  That’s still true.

“There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue.  There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt.  Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.”

But it is the court’s procedural rules that govern how and when a plaintiff must serve a defendant, both here and abroad.  Those rules vary wildly, with some (including the FRCP) directly addressing defendants served abroad, and others completely missing the boat altogether (I’m looking at you us, Missouri).  But a statute of limitation(s) has nothing to do with it.  Even if it did, that statute may entirely ignore the realities of foreign countries’ laws and practices; the Schlunk decision makes pretty clear that you MUST follow the Hague Service Convention where it applies, and I promise you– India, Mexico, China, and even Germany & Switzerland, whose Hague Central Authorities are relatively fast, don’t give a whit about meeting a deadline set by a U.S. court. Even if that means a plaintiff’s access to justice are dashed.  Instead, it is up to the U.S. court to ensure that access.

Fortunately, they almost always do in situations like this.


* The QUADFECTA of negligence claims.

    U.S. Embassy, Bangkok, Thailand (State Department photo)

The most frequent sort of question to hit my inbox of late has been from lawyers all over the country, looking for a referral to foreign counsel.  Foreign in the “you need a passport to go there” sense, rather than in the “across State Line Road” sense.

  • Hey, Aaron, do you have anybody who can help me review a contract with a choice* of Greek law?
  • My client needs to enforce a Minnesota judgment in Korea.  Know anybody who can help?
  • How feasible is it to sue somebody in Australia instead of the U.S.?

In many cases, the right colleague comes to mind quickly– especially in places like Italy or England or Germany.  But if I don’t have anybody to refer to, it isn’t necessary to fret.  A great resource is available through various U.S. Embassies around the world, and I’ve had particularly good luck in using it: each embassy’s U.S. Citizen Services office maintains a list of local attorneys who have identified themselves as (1) English-speaking and (2) seeking/welcoming American clients.**

How to get there?  Exceedingly simple:  just Google “U.S. Embassy (foreign capital)” and click on the “US Citizen Services” link.  Scroll to the Local Resources section and click “Legal Assistance.”  To be sure, the Paris list is going to be significantly longer than, say, Bangkok, but that’s relative to a combination of population and commercial & economic ties.

The extent of available information varies widely as well, with the best lists even delving into discrete practice areas.  Need a commercial lawyer?  No problem.  Family law?  Okay.  Criminal defense?  You bet– and in fact, the Embassy itself will be a U.S. citizen’s best starting point for that.

In many cases, it’s a simple as that.  (And for the really complicated ones, I’m always happy to chat.)


* Choice clauses are a big deal, critically important in contracts with overseas parties.  Three important ones come to mind, and they should be specific and coordinated: choice of law, choice of operative language, and choice of venue/forum/court.  It’s a bit daft to choose Greek law, but English language and Missouri venue.  It’s even more daft to leave the issues unaddressed!

**As I understand it, both the United Kingdom and Canada provide similar resources via their diplomatic legations.

No, not that kind of wave.                                               (Alvesgaspar via Wikimedia Commons)

Civil defendants in federal court are obliged to waive service.  All of them, with the notable exception of various governments.  I give you Rule 4(d)(1):

An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.*

(Emphasis added.)  Seems pretty simple to me.  Unless the defendant is something like the National Weather Service or the Warwickshire branch of the Ministry of Housinge, a waiver is required, no matter where the defendant happens to be sitting– in Berlin, Germany or Berlin, North Dakota.

Rule 4(d)(2) goes on to say:

If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

Aha!  Magic words to the lawyerly ear: FEE SHIFTING.

But what’s missing in the rule?  Foreign defendants.

Okay, they’re missing, but take another look at the framing of the rule.  It says the court MUST fee shift if a domestic defendant doesn’t waive and can’t make a decent argument as to why.  Offshore defendants are left out of the equation entirely (more on why that is a minute).  Does that mean, then, that their obligation goes away?  On the contrary– the obligation still arises when the defendant is properly asked to waive.  They still have an affirmative duty to avoid unnecessary expenses of serving– and having billed some clients in the low six-figures (in advance!) for service on a defendant or two, I can tell you that it just isn’t necessary.  But some defendants just won’t play nice.  The 1993 Advisory Committee’s notes are illustrative on this point:

The aims of the provision are to eliminate the costs of service of a summons on many parties and to foster cooperation among adversaries and counsel. The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense. Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States.

(Emphasis added.)  They were talking about Toyota there.  Yep, a Japanese company that makes a bunch of money in these United States.

But that begs the question:  why are offshore defendants left out of the fee-shifting provision?

Well, in the 1993 re-vamping of the rules on serving a summons, the original text didn’t make a distinction between U.S. and non-U.S. defendants.  The British diplomatic legation made known its displeasure, and the drafters just didn’t want to have to fight about it, so they punted.**

Now, there’s some logic in the displeasure.  Why, after all, should a blue-collar guy from Dorchester, who saves up for years and takes his family to Disney World but gets in a car accident, be expected to understand the waiver obligation?  He shouldn’t.

But what about a lawsuit involving a Rolls-Royce jet engine?  I’m pretty confident that Rolls-Royce has a capable bunch of lawyers on staff.  I’m fairly certain they understand the costs involved in serving them.  And I am straight-up positive that they know they get an extra 69 days to answer the summons if they fulfill their duty.***  [To be sure, I’ve never had to serve Rolls-Royce, so I have to conclude that they waive service as a routine practice.]

And what about the Swiss company that my client sued last year for infringing a dozen patents, all of which had to be translated into German?  Sure, the plaintiff’s complaint might have been significantly shorter (see here for a tip on that).  But even a modest complaint, combined with my fees and printing and shipping… you’re looking at a couple thousand bucks.  Substantial and unnecessary expense, which the defendant has a duty to avoid.  The avoidance of which provides them four times the normal number of days in which they must answer the complaint.

The duty arises, but the court does not have a “thou shalt shift fees” mandate for anyone but U.S. defendants.  What’s the foundation for the fee-shifting argument?

The inherent authority of the court to manage its own docket, assess costs, and sanction recalcitrant parties.

In short, it’s discretionary, and to my mind, naturally within the court’s authority.  The discretion allows the court to give Dorchester Disney Dad a break, but hold Rolls-Royce and Toyota and Lufthansa to a patently reasonable standard: you want to do big business here, plan on being sued here, and plan on playing nice with others.  That’s at the heart of the 4(d) obligation in the first place.

Unfortunately, there is no on-point** case law on the 4(d) fee-shifting issue– at least not that I can find.  Hint: I’m looking for a test case.

 


* For the record, 4(e) covers individuals served in the U.S., 4(f) covers individuals served abroad, and 4(h) covers entities everywhere.

** Dicta from the dissent in Brockmeyer v. May, 361 F.3d 1222, 1239 (9th Cir. 2004).  Oh, and I mean punted in the NFL sense, not the “gently plying the waters of the Thames on a pole-driven pleasure boat” sense.

*** Rule 4(d)(3).


[Author’s note: on its face, a post like this might seem self-defeating.  After all, my practice depends entirely on other lawyers who need to serve defendants located abroad.  Pretty straightforward stuff– if you sue Toyota or Lufthansa in a U.S. court, you either need help from somebody like me, or you have to do a whole bunch of research to make sure you’re doing it right.  Bottom line… outsourcing it is better for your client.  This little blog is not going to lead overseas defendants to waive… but it could lead to the plaintiffs getting their costs back.]

 

 

 

 

A sailor unloads the mail, Yokosuka, Japan, 2006. (U.S. Navy photo.)

In order for the Hague Service Convention (HSC) to govern the legal formalities of notifying defendants of claims against them, you’ve got to know where the defendant can be found.  An address is critical to service anywhere, on any defendant, but it can be particularly challenging when it comes to serving U.S. servicemembers stationed abroad– as well as when it comes to serving their dependents* or civilian support staff stationed with them.  It’s especially daunting when those folks live on a U.S. military installation in Germany or Italy or Japan or… any number of other far-flung locales.

A few years ago, I addressed some issues surrounding service on military personnel in two posts:

Bottom line, it’s tough.  And in many cases, service simply can’t be effected by “regular” means, either because the GI has no discernible address, or because local (foreign) officials either cannot or will not coordinate with U.S. military authorities to arrange for service.  But I’ve had a recurring issue pop up several times of late, dealing with the assertion that an Armed Forces Post Office (APO) or Fleet Post Office (FPO) or DPO (Diplomatic Post Office) address is sufficient to trigger the applicability of the HSC.

My response: no.

The HSC only applies when the defendant’s address is known… straight out of Article 1:  “This Convention shall not apply where the address of the person to be served with the document is not known.”  Pretty simple stuff.  But things really get complicated if the address is not known, or where somebody gets the idea that APO equals Hague validity.  It just isn’t so.

An APO/FPO/DPO address is a creation of the United States Government– specifically the Department of Defense in cooperation with the United States Postal Service, not foreign postal services– so it cannot be considered a “foreign” address.  Its formatting is roughly similar wherever an American is stationed or deployed around the world, and it carries a ZIP code. It provides no information whatsoever to foreign officials as to where they might physically find the defendant in order to serve pursuant to local law. Ultimately, it fails to even indicate that the defendant resides anywhere, much less in the particular country at issue.  Generally speaking, U.S. servicemembers receive mail from home primarily via their APO or FPO address; the only way they can receive mail via the host country’s postal service is by using a civilian street address or post office box away from the U.S. military installation. Likewise, the servicemember’s dependents (ie: spouses and children) receive their mail via APO channels.

  • If the defendant’s address is something like “198 Rue de Mons, 7011 Mons, Belgium” it can be done.  That’s an actual street address that can be found on Google Maps and is readily accessible by a local huissier de justice tasked with serving the papers.
  • If, conversely, the defendant’s address is something like “E Company, 2/506th PIR, APO NY 09055″, then all bets are off.**

Why?  Because APO addresses are attached to an organization, rather than a location.  In today’s military, they generally include a post office box number, so the conclusion that they aren’t connected to an actual abode is even more obvious.  I don’t know of a process server or judicial officer anywhere in the world who is willing to attempt personal service on an individual at a post office box.  Such an undertaking would rely on exquisite timing and monumentally good luck, in that the person serving must encounter the defendant precisely when s/he accesses her/his mailbox.  But if that box has no relation to their local mail system, it just won’t work.

Put that address on a Hague Service Request (colloquially, a USM-94)?  Fuhgeddaboudit.  It ain’t gonna happen.

So what is a litigator to do?

Well, first, undertake a diligent search to ascertain whether the defendant has a civilian address (ie: off-post, off-base… what’s referred to as “on the economy” in military parlance).  If you get one, great, proceed to Hague channels (see the Seconda Parte story above).

If you don’t, move for leave to serve by mail at the APO/FPO/DPO address– even if it’s not in the rules.  Don’t worry about running afoul of Hague restrictions.  If you don’t have anything but an APO address, Hague restrictions don’t apply.

Then, just to make sure all bases are covered (I contend that mail service alone is insufficient under Mullane), move for leave to serve electronically— email, Facebook, Twitter, etc.  There’s a significant line of federal case law that approves of electronic service, and a few states here and there are picking up on the logic.***  Use it if you have no other choice.


* Spouses, children, step-children, or other family members stationed abroad with the solider/sailor/airman/Marine.  Like me, as a kid.

** My family lived at 198 Rue de Mons for a year after we arrived in Belgium for my dad’s three-year assignment with the Army.  We never got a single piece of U.S. mail there.  Instead, all of our mail from Grandma and Sears & Roebuck went to the Old Man’s APO address (the Old Man was not a paratrooper, for the record) and cut out the Belgian postal service entirely.  I doubt Grandma ever knew about the 198.  Sears… well, if they’d known, they’d be omniscient and thus still operational.

*** Much of that case law is in error where the Hague Service Convention actually applies.  See Ted Folkman’s series on the disastrous Gurung decision, his White Whale.  Where all you have is an APO… fret not.

No, really.  I’ve argued ’til I’m blue in the face that Hague mail service is a bad idea.  Sure, it might be perfectly valid from a legal perspective, but factually… oy vey, you got problems, friend.

But even the legal perspective just became murky.  A few minutes ago, I got an email from the good folks at FedEx, conveying a message that I’m sure UPS and DHL will send out shortly.

We want to do our part to help prevent the spread of (microbe-who-must-not-be-named) in our communities.

That’s why effective immediately, we won’t require you to physically sign for most deliveries made in the U.S. It’s just another way we’re focused on Safety Above All – now, and always.

Visit our (Dark Microbe) customer site for more details and to learn more about how FedEx is responding as this situation evolves.

“We won’t require you to physically sign for most deliveries made in the U.S.”, you say?

Well, what about in other countries?

See, one of the federal requirements for valid mail service abroad is that the form of mail used require a signed receipt (yes, that includes FedEx and UPS and DHL).  It’s right there in Rule 4(f)(2)(C)(ii):

(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:

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(C) unless prohibited by the foreign country’s law, by:

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

Set aside the fact that the vast majority of the world (by population and land mass, if not by market capital) objects to mail service under the Hague Service Convention.  Even where it’s acceptable, the Voldevirus just made things more complicated.

The takeaway?  Don’t try to do it the quick & easy way.  Use a more factually sufficient method.


* Entities fall under this rule, too, thanks to 4(h)(2): at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).


We all need a giggle right now, so Bruno Mars fans and Harry Potter fans… y’all get together for Dark Lord Funk.

Charles Evans Whittaker Federal Courthouse, Kansas City, Missouri. Voidxor, via Wikimedia Commons.

A couple of years ago, I posited in “Removal and the Timing of Hague Service Convention Requests, Real World” that not only must service be effected properly, but the contents of the service packet had to be proper as well.  I discussed a case in which State Farm* sued a Korean defendant– among others– in state court, but one of the defendants removed the case to federal court before State Farm’s counsel initiated Hague procedures in Seoul.  The state summons was served instead of the appropriate federal summons, so the defense had a beautiful 12(b) motion to dismiss.  Ultimately, the case wasn’t kicked, but it could have been.

The court focused– erroneously, I think– on 12(b)(5), which permits dismissal for insufficient service of process.  Really, 12(b)(4) would be the more appropriate basis for dismissal, because it goes to the insufficiency of the process itself.  Here, there was no federal summons or removal order served– just the state summons & complaint.  But as the court points out, service was properly effected via Korea’s Central Authority.  The real issue was the content of the service.  State Farm simply didn’t send the right stuff to Seoul, so rather than dismissing, the court ordered it to tee up the ball again– this time with a new 90-day deadline.

It bears repeating:  there was no federal summons or removal notice served– just the state summons & complaint.

That’s risky, and it absolutely must be avoided, because savvy defense counsel will key in on that error every time, and they’re likely to win, at least in part.

If you file a state suit, get the wheels turning immediately to serve that state suit.  If you’re fairly convinced that removal will come before you can get a Hague request on file, hold off on translating the documents and engaging somebody like me to handle it for you.**  But above all else, make sure that once you’re removed, you have a federal summons at the front of the packet.


* Immaterial to the analysis, but important full disclosure: I’m a State Farm client.

** Don’t hold off on talking to somebody– but don’t pull the trigger too soon either.

Two white whales are the subject of my Captain Ahab diatribes in this space.  One concerns an issue of cross-border civil procedure, while the other concerns a rather goofy* interpretation of what the rest of the world views as plain language.  I address here the latter of the two:  the concept of a child’s habitual residence.  Remember those words, friends, because the U.S. Supreme Court held unanimously today that the term habitual residence should be analyzed under a totality-of-the-circumstances test.

In Monasky v. Taglieri, the Court held that a child’s habitual residence depends on the totality of the circumstances specific to the case, not on “categorical requirements.”

To be sure, this interpretation applied to the Hague Child Abduction Convention, in a case where the abducting parent took a mere weeks-old infant from its country of birth against the wishes of the other parent, and took her to another land– conveniently, the United States.  A trial court agreed with the other parent, saying “nope, take the baby back where she was born, and let them determine custody.”  That’s a gender-neutral distillation of the facts based on the Court’s syllabus, but it needs to be so in order to avoid bringing sympathy to bear on the matter.  The Court’s reasoning was spot-on, and it gives lower courts ample flexibility to weigh a range of factors into determining a child’s habitual residence.

I leave analysis of the case itself to more learned colleagues, most notably Amy Howe at SCOTUSBlog, and the host of others who will no doubt parse Justice Ginsburg’s text in the coming days.  My focus is instead on another treaty– the Hague Adoption Convention (1993), the interpretation of which in the United States has been an abomination for over a decade.

Just over a year ago, in Habitual Residence: Two Definitions, I offered this:

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

Well, Justice Ginsburg was pretty clear today– the parents’ intent is not the only thing that matters.  More circumstances must be taken into account.  As of today, a broad view is undeniably United States law under the Hague Child Abduction Convention, and courts have latitude to look into the reality of a child’s existence, rather than just an isolated element.  Under the Hague Adoption Convention, however, U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  Period.  No context, no consideration given to where the child has laid its gentle head for the past several years, no thought to what might happen to the child if its destiny is left to arbitrary decisions…

My argument today is that the Monasky holding should be applied to the Adoption Convention just as it is applied to the Abduction Convention.

The primary goal of the Adoption Convention is to stem the tide of human trafficking– a laudable one, to be sure– literally to stop the sale of babies on a sick, twisted global market, rife with the worst of humanity on both the supply- and demand- sides.  A unilateral, single element definition of habitual residence as currently applied (country of birth, period) certainly accomplishes that.  But it also arbitrarily prevents the adoption of children with no other option but to be taken in by their own aunts, uncles, grandparents, older siblings, and just kind Americans who want nothing but to give these kids a better life.

I hope Monasky stands for more than just one treaty.  It’s the same concept– habitual residence– in both treaties.  And the rest of the world views the idea in the same light.**  We should, too.


* I originally typed that as “Philistine-pig-ignorant” but decided that was too harsh.

** The Court’s opinion gave significant weight to the interpretation of the term by foreign courts.

Valetta, Malta’s capital.
Briangotts via Wikimedia Commons.

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.  Serving process in Malta is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  This chain of islands, a former British colony off the southern coast of Sicily, isn’t just the site of a boat race in Season 1 of The Crown.  It is also home to stunning scenery, bright sunshine, and a wonderful blend of English, Italian, and North African cultures.  Malta is a relatively new member of both the European Union and the Hague Service Convention– and service of documents is fairly straightforward.

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 confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  At least not if you want it to work. You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is effected in Malta:

Article 5 Service

  • Translate the documents. English is one of Malta’s official languages, so 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—perhaps several months from submission to return of proof.

Article 10 alternative methods

  • Here’s where we run into a snag.  Malta hasn’t indicated whether Article 10 methods are available or not.  My best recommendation: leave them alone, and just send to the Central Authority.  Although most countries’ declarations and Central Authority information can be found here, the only info provided for Malta is a place to send Article 5 requests.
  • Down the road, the mystery may be resolved.

That’s it.  Really all there is to service in Malta.

But a 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.