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.

 

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.