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.

Wolf Lambert via Wikimedia Commons.

Last week, in “Wrong reasoning, right result?“ I ranted a bit– criticizing the latest in a nationwide string of wrong decisions involving FRCP 4(f)(3).  At issue: whether courts can authorize service by email on defendants located in Hague Service Convention countries that object to Article 10(a).

My view is awfully straightforward– if the Convention applies, and the destination country objects to 10(a), then Nein.  没有。Нет.  ほぼ。 幾分。

Not no, but hell no.*

In a bit of serendipitous timing, a colleague pinged me over the weekend and asked for my thoughts on this one:  “Judge takes rare step to help serve elusive Ghislaine Maxwell with lawsuit.”  I’m usually pretty skeptical about the New York Post, notwithstanding my intellectual affection for Alexander Hamilton (there’s a million things he hasn’t done, but just you wait), although this particular article set aside the editorial slant that often dims my view of A-dot-Ham‘s creation.  Seems there’s a problem locating a civil suit defendant in the Jeffrey Epstein debacle, so plaintiffs’ counsel rightly asked the judge for leave to serve her by electronic means under 4(f)(3).  Specifically:

(f) 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.

My response to the colleague who posed the question:

Sounds to me like exactly the situation Rule 4(f)(3) was designed for.  If the plaintiff can’t find her despite a diligent search (that’s usually where such a motion gets tripped up– they don’t search diligently) then the Hague Service Convention doesn’t apply.  Consequently, there’s no treaty-based argument that email service is inappropriate.  This one seems to be a valid application of the rule.

 

So why doesn’t the Convention itself apply?  Because they can’t find the defendant.  From Article 1:

This Convention shall not apply where the address of the person to be served with the document is not known.

If the Convention doesn’t apply, then electronic service creates no worry about fulfilling Justice O’Connor’s mandate in the Schlunk decision.  There’s no “occasion to transmit” the documents abroad.  There’s no worry about a hierarchy within Rule 4(f).  And there’s a pretty significant chance that the defendant’s due process rights will be fulfilled.**

As long as the plaintiffs can demonstrate that the defendant actually uses the electronic means authorized by the court, thumbs-up on this one.

* Whether it’s okay where the destination country doesn’t object is a different matter entirely, and quite arguable.  I have mixed views on that one… fodder for another post.

** From Mullane and Rule 4(f) itself… a means reasonably calculated to provide notice and an opportunity to defend.

Old High Court and Supreme Court, Wellington. Pear285, via Wikimedia Commons.

Just off Australia’s east coast lies a gorgeous chain of islands known today in large measure for its huge population of Elves, Orcs, and Dwarves (and one very grumpy little fellow).  Before New Zealander Peter Jackson filmed his Lord of the Rings and Hobbit trilogies, New Zealand was famous primarily for (1) the Māori Haka,* especially performed by its powerhouse All Blacks national rugby union team, and (2) sheep.  LOTS of sheep.  Oh, and then there was this guy.

New Zealand is not party to the Hague Service Convention (HSC), although it has acceded to the Hague Adoption, Apostille, and Child Abduction Conventions.  Notwithstanding its absence from the HSC, serving documents in New Zealand is relatively straightforward, owing to its status as a former British colony and current member of the Commonwealth of Nations.  It maintains a healthy common law system, so it should not be unfamiliar to American or Canadian** lawyers.

Service of U.S. (and most likely, Canadian) process can be effected (1) by mail, if permissible under forum court rules, (2) by Letter Rogatory, or (3) via private process server.  In all cases, enforcement of a judgment must be kept in mind– and it is in that light that I recommend Door #3 for just about every case that come across my desk (yes, I’ll be happy to handle things for you).  Addressing each in turn:

  1. Mail:  Most U.S. courts, where service is allowable by mail to begin with, allow mail service on foreign defendants only where it is not prohibited by the rules of the foreign jurisdiction.  New Zealand’s High Court Rules do not specifically prohibit mail service, but they also don’t specify how mail service should be effected unless a P.O. Box is involved.  Frankly, I’m still not a big fan of service by mail– it’s a bad idea when there are other practical methods available.
  2. Letter Rogatory:  an official request from the forum court for judicial assistance from a New Zealand court.  Costly and time consuming, this instrument really isn’t all it’s cracked up to be (see here for elaboration on what it is).  For starters, budget a $2,275 fee to the Department of State just to convey the thing.  Then anticipate several months of waiting before a response comes back through diplomatic channels.  A Letter Rogatory simply isn’t necessary to ensure that service is effected according to New Zealand law.
  3. Private process server:  Not incredibly costly, and certainly on a more solid factual footing than mail.  A New Zealand process server can ensure that local rules are followed, thus ensuring that the manner of service will not give a court cause to reject an enforcement action later.  Just make sure that the proof of service demonstrates compliance with both bodies of law (High Court Rules, Part 6— if you’re curious– and forum court rules).

Some non-Hague jurisdictions present significant problems with service.  New Zealand is definitely not one of them— indeed, it is among the simplest places to serve, either within or outside the Hague community.

* See my earlier post on the value of Choice of Language clauses.

** Commonwealth procedures may govern the manner in which Canadian process should be served in New Zealand.  The author is not admitted to practice in any non-U.S. jurisdiction, so although the information presented here may be accurate, it should not be presumed to be exclusively applicable in Canadian causes of action.

You really didn’t think I’d let this post end without a picture of a Hobbit Hole, did you?

Tom Hall, via Wiki.
O’Connor, J.  Favorite daughter of Arizona and distinguished author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

The question mark in that headline only applies to half of the headline.

The result might be correct, depending on facts not articulated in the order, but the logic behind N.D. Ohio’s grant of leave to serve by alternative means in China is (to put it delicately) fatally flawed– an illustration of how “kinda-sorta-bad” law can evolve someday into extraordinarily-unquestionably-bad law.  In NOCO Company v. Shenzhen Lianfa Tong Technology Co., Ltd. et al. (1:19-cv-01855), the court issued the latest in a nationwide string of wrong decisions because, apparently, none of the lawyers in the room consider Sandra Day O’Connor an authority.

I’m serious.

Directly quoting from the judge’s February 5 order:

  • The preferred method for service of a foreign party is service pursuant to the methods authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Fed.R.Civ.P. 4(f)(1).

Well, no, not exactly.  Hague methods aren’t the preferred methods of service on a foreign party.  If the Convention applies, they’re EXCLUSIVE.  Period.

Says who?  Says Justice O’Connor.  And, ironically, Judge Boyko, in his very next sentence.

  • “The Hague Convention is the exclusive method of effecting service between signatories to the convention.” Midmark Corp. v. Janak Healthcare Private Ltd., No. 3:14 CV 088, 2014 WL 1764704, at 1 (S.D.Ohio May 1, 2014) (citing Kreimerman v. Casa Veerkamp S.A. de C. V., 22 F.3d 634, 643–44 (5th Cir.1994)).*

The judge goes on…

  • Rulings on alternative service of process under Federal Rule of Civil Procedure 4(f)(3) are discretionary since “the plain language of the rule stipulates that a district court ‘may’ direct alternative means of service.”

No.

Just… NOOOOOOOOOOOOOO.

Okay, sure– if there’s no treaty that supersedes the Federal Rules of Civil Procedure (all treaties supersede such rules, in case the Supremacy Clause has been forgotten).  But if adherence to Hague strictures is mandatory– and if Hague methods are exclusive– there’s nothing discretionary about 4(f)(3).  The court can’t go there.  The only way a court has the discretion to authorize alternative means under 4(f)(3) is if they do not conflict with the Hague Service Convention (right, Justice O’Connor?).

The farther I read into this order, the more it sets my teeth on edge.

Yet another flaw…

  • Federal courts have repeatedly found that email service is not prohibited by the Hague Convention.

Yes.  They’ve wrongly found that email service is not prohibited by the Convention.  I won’t get into the issue very deeply, except to point readers to the excellent commentary on the Gurung decision by Ted Folkman over at Letters Blogatory (holy crap, Gurung is soooooo wrong).  Simply put, the only way that email service could arguably be permitted by the Hague Service Convention is if it falls under Article 10(a)– which says the Convention doesn’t interfere with “postal channels.”  But the Convention does interfere with postal channel service if the destination country objects.

China objects, so it’s off the table.  Done.

The exclusivity of Hague methods, described by Justice O’Connor in Schlunk, combined with China’s objection to Article 10, makes the line of reasoning in the NOCO Company order absolutely baffling.

So why do I expect that the court still reached the right result here?  Because absent an address for the defendant, the Hague Service Convention– by its own terms (Article 1)– does not apply.  The order indicates that the plaintiffs undertook a good faith effort** to ascertain an address for the Chinese defendant, but they couldn’t find one, and that is a solid basis for granting the order.

I have no problem saying that electronic service (email, LinkedIn, Facebook, Twitter!) fully vindicates a defendant’s due process rights.  After all, it’s the 21st century.  We can no longer kid ourselves by thinking that publication is reasonably calculated to give sufficient notice to a defendant, but service by electronic means that a defendant clearly uses?  You better believe it’s constitutionally sound.

It just can’t happen if it conflicts with a mandatory and exclusive treaty.

* The reference to Kreimerman tickles my brain a bit.  The 11th Circuit distinguished the Hague Service Convention (“hey, it’s mandatory and exclusive, y’all!”) from the Inter-American Convention on Letters Rogatory (“not mandatory, y’all, so go on ahead to 4(f)(3)!”).

** Strangely, the docket doesn’t provide the plaintiffs’ memorandum in support of their motion for alternative service.  As such, I can only speculate as to what sort of diligent search was undertaken.  If there’s any question, I can put them in touch with a great investigator.

Author’s note: this case came to my attention thanks to a post at the always-entertaining Above the Law.  In China At Your Service, Gaston Kroub offers that the NOCO order offers a glimmer of hope to IP litigants.  It really shouldn’t, and even if it does, that hope is tenuous at best– not just because the basis for the order is flawed.  Litigating may not always be the best course of action in the first place, as I discuss here— while bootstrapping commentary by Dan Harris at the China Law Blog.

Sorry, Google Maps. I fixed it for you with a Post-It™ Note Flag.  Man, those things are handy.

A couple of years ago, I posted an admonishment that Service of Process in Hong Kong means Hong Kong, CHINA.  That post was a precursor to the nuts & bolts post I put up a few months later on How to Serve Process in Hong Kong.  In that post, I stressed the care needed in properly naming the former British colony:

Serving process in Hong Kong is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Critical to note is that Hong Kong is very much a part of the People’s Republic of China, and for two decades has been considered a “Special Administrative Region” of the PRC.  For a century before that, it was a British colony, and its legal regime is still very British in nature… common law, solicitors, English-language pleadings & arguments, etc.  The PRC’s declarations to the Service Convention for Hong Kong really just continue the British Hague regime, rather than apply the rules for the remainder of mainland China.

But that only touched on the issue in the earlier post:

Simple practice tip: if your defendant is located in Hong Kong, be sure to refer to the jurisdiction as Hong Kong, China or, alternatively, Hong Kong S.A.R. (shorthand for “Special Administrative Region”).  Any request which refers to Hong Kong in isolation, and is submitted to the Hong Kong Central Authority for the Hague Service Convention, will be rejected as a matter of course.  Hong Kong government officials are particularly wary of showing any offense to the government in Beijing, and they insist on this nomenclature out of abundance of caution (aside: I truly wonder if Beijing even cares, but it is not for me to judge).

As a result, I always tell my clients that they should either amend their pleadings to accommodate the requirement, or they should select the more costly option of having service effected in Hong Kong by a solicitor.  A few months ago, I submitted an Article 5 request for a fellow lawyer (that’s what I do, after all) comfortable in the knowledge that everything was carefully drafted– he was wise enough to tap me on the shoulder before he filed, so I could give him the lowdown on the S.A.R.’s nomenclature, and his filings reflected the proper designation.  Everything was Jake.

Today, I get a nice letter from the folks in Hong Kong containing this little tidbit:

With reference to your request for service of judicial documents on the above­ mentioned party, I regret that we are unable to accede to it because the description “Hong Kong” is listed on an equal basis with other countries in the request form and/or documents to be served (see examples flagged).  You may consider amending “Hong Kong” to “Hong Kong SAR, China” before sending the request to us again.

Um… what the huh?   As I frantically skimmed the request form and the pleadings, it never even occurred to me that the rules had changed.  Nothing in my request form, nothing in my client’s pleadings– nothing– ran afoul of the S.A.R. requirement, so what are they talking about?

Then I saw the Post-It™ Note flags hanging out of the stack of exhibits.

Yeah.  The exhibits.  You know, those evidentiary offerings attached to a complaint, with the hopeful purpose of demonstrating the strength of a claim.  Those evidentiary offerings that, given their nature as evidence of circumstances or prior intent, cannot be amended.

The takeaway?  Don’t even bother with Article 5 in Hong Kong if the underlying contract or other relevant exhibits don’t likewise conform to the S.A.R. nomenclature.  It seems that lots of time and money are going to be wasted.

Occasionally, when I search Wikimedia for pictures to include in my blog posts, I come across a gem.  This is one of those times.  Searching “post-it note” in Wikimedia Images, this thing popped up.  It almost hits the mark, on a similarly touchy issue.  I’m guessing the map was printed in the PRC.

Image by wiki user Dh4102.

 

 

Bodo Akdeniz, via Wikimedia Commons.

Add me to the list of those mourning– and lauding– the great Terry Jones (he of nude organist fame), who wanted to be remembered more for his scholarship than his comedic genius.  That term, genius, is bandied about far too much these days, but Jones and his co-conspirators really were so far ahead of their time that they cannot be considered anything else.  True geniuses, all.  Well, except Cleese– he’s just a grumpy old bastard with some talent.  And a very odd gait.

So, Jones… perhaps the most famous graduate of St. Edmund Hall, the Oxford University college that I’ve been fortunate to call my very-temporary home during the past few summers.  I just found out this week that he was a big fan of Chaucer, and wrote extensively about the Canterbury Tales author.  Makes perfect sense, considering the intellectual foundation on which the humor (it was spelled like that on the van!) of Monty Python was built.  On the surface, it was all so damned silly, but even the Mr. Creosote bit from The Meaning of Life had an undercurrent of smartness to it.

Greatest example, and the Python scene that had the most dramatic impact on my life: the Constitutional Peasants scene from Holy Grail.  Those three short minutes made me want to major in Political Science and study the philosophy of government power.  Jones was the guy behind that, and I owe him (and Michael Palin, to be sure) more than you can imagine.  It seems that comedy sketches inspire us as much as sermons and lectures.

I can’t wait to see the grumpy old bastard’s eulogy for the next guy.  (Two down, four to go!)

 

 

Apparently, a normal chest x-ray.  I have precisely no base of knowledge to refute that conclusion (I haven’t gone to med school).  Image credit: Yale Rosen, via Wikimedia Commons.

I fielded a phone call in the wee early hours this morning (I was already up and working) from a fellow with an overseas issue.  He said he needed a some help with the Hague Convention (there’s no such thing as “the” Hague Convention), and could he pick my brain for a few minutes.

Sure, I said, but it was apparent right at the outset that he lacked the necessary self-loathing to have ever gone to law school.  That always gives me pause, so I interjected to ask if he was a litigant or the attorney handling the matter.

No, I’m not a lawyer, said he, with a frustrated tone in his voice, leading me to believe that he’d already spoken to a few lawyers with no luck.  I tried to let him down easy and point him toward some professional assistance, but he was having none of it.

See, I don’t give advice directly to litigants on these matters– I can’t— but I will tell those litigants that (1) I’m always happy to assist their lawyer, and (2) if they don’t have one, I urge them to retain someone.  This sort of thing (cross-border procedure) is a challenge even for seasoned trial attorneys, so it’s nigh impossible for “civilians” to undertake on their own.

The lion’s share of folks who contact me are very kind and they understand where I’m coming from.

This morning’s caller was mildly nasty about the whole deal.  He said he’d just use my blog as a template* and grumbled something about (g-d) lawyers under his breath before hanging up on me.  I get similar inquiries a few times a week, most via email, but the lion’s share of folks who contact me are very kind and they understand where I’m coming from.

This blog is and should be a resource for anybody dealing with overseas procedural issues.  That said, its primary purpose is to guide attorneys— not individuals involved in their own lawsuits without counsel.  These folks are called pro se litigants  (pronounced “pro-SAY”), and although individuals certainly have the right to represent themselves, it’s simply not a good idea.  Sure, I’m biased in saying that, much as a physician is biased in telling someone he shouldn’t perform surgery on himself.

Nobody should try to take out their own appendix, and nobody should try to represent themselves in a court proceeding– even for something seemingly minor like a traffic ticket.**  That old adage “any lawyer who represents himself has a fool for a client” is telling.  Even lawyers and their family members*** should hire someone else to assist them, especially if a matter lies outside their expertise.

And in the context of overseas issues, it’s even more critical that a party to a lawsuit have someone trained in litigation to fight on his or her behalf.  Having a licensed attorney involved really is as critical as having a surgeon perform an operation.  So, what’s my role in that analogy?  Think of me like a radiologist– the doctor who reads a patient’s x-rays and MRI scans, and advises the surgeon about where s/he needs to go once the patient is on the table.  I advise litigators about where they need to go once an overseas defendant has been named in a lawsuit.

 

* No, don’t do that.  It’s not a template.  It’s just an overview.

** I recognize the fact that some states don’t allow accused offenders to represent themselves– I contend that this is an unconstitutional restriction– but I remain adamant that if a person is summoned to court, they shouldn’t go alone if they can retain counsel.

*** Just ask my wife.  [It was a simple parking ticket, but she’s still irked that I couldn’t get it dismissed!]

Māori protest at Waitangi, 2006. Charlie Brewer, via Wikimedia Commons.

No original content here– just a reiteration of something I urge lawyers to always be cognizant of:  which language will govern a contract.  In Five Essential Things– Elaborated, Part 4: Choice of Language, I stressed the importance of choosing a contract’s operative language in the contract itself, and making sure that an accurate translation of that operative language makes the other side aware of its terms.  Horrific things result if lawyers miss the mark.

Today’s post over at the China Law Blog is incredibly timely.  I don’t want to steal Adams’ and Dan’s thunder, but this continues to be an incredible worry that U.S. negotiators may be glossing over.  In The US-China “Phase One” Deal — No Text, No Translation. What, Me Worry?, the fellows from Seattle highlight a potential disaster.

Treasury Secretary Steve Mnuchin has dismissed “rumors” that China’s commitments in the deal had been changed in translation. Of course, since no one has seen either the English or Chinese versions of any drafts of the deal, it is impossible to do a side-by-side comparison to see if the English and Chinese versions are consistent or what, if any, changes were made from prior drafts, also undisclosed. There is though a very significant possibility the Chinese version will not be entirely consistent with the U.S. English version and the Chinese will think they have agreed to something different from what President Trump and his team believe they have agreed to.

Yeah.  What could possibly go wrong?

Quite a bit, actually.  Remember that a treaty is nothing more than a special kind of contract– with all the elements like offer, acceptance, meeting of the minds, sometimes adhesion.  And if the terms are ambiguous, confusing, conflicting…   oy vey, the problems that ensue.

Just ask the Māori tribe in what is now known as Middle Earth.  The Treaty of Waitangi didn’t work out too well for them, because their translation didn’t jive with the English version that was backed up by the Royal Navy’s heavy guns.

Secretary Mnuchin would do well to pay attention.

 

 

 

Jennifer Moy, via Wikimedia Commons.

Yet another rant here about advice from purported experts on service of process abroad.  The usual tidbits have been making the rounds of late, according to clients who’ve called me.

As with many areas of the law, things usually aren’t as simple as they seem.  Sure, I often say to clients that serving in Canada is a piece of cake– a tasty piece of wedding cake– because it really is.  If you know what you’re talking about.  England and The Netherlands aren’t too far behind in the ease-of-use category.  That said, they’re only easy if you know what buttons to push and where those buttons are located.

Elsewhere, landmines litter the landscape.  Some examples…

Anybody who says “you won’t meet your deadline” doesn’t know what they’re talking about.  (Maybe.)

The most recent one to pop into my inbox… “my process server says it’ll take three or four months to serve my defendant in Switzerland, but I’m in federal court and I only have 90 days!”

For starters, no.  Just… no.  It may take three or four months from the date a request is submitted to the date proof reaches your desk.  But service itself happens somewhere in the middle– the Swiss don’t just make great watches.  They’re pretty good at getting service effected in a timely manner, too.  In fact, the defendant’s answer deadline will likely pass before proof comes back.

Even at that, the 90-day deadline from Rule 4(m) isn’t the great bogeyman your process server would have you believe.  It only applies to service on U.S. defendants, while it merely helps courts refine the parameters of a reasonable diligence standard for serving abroad.  In many countries, service takes so long that the judge just has to deal with it.

Don’t get me started on process servers weighing in– if they can’t put your mind at ease on this specific issue, how accurate will they be when they start encroaching on legal analysis?

The tough part about services deadlines is that they’re so fact-specific.  And it takes a bit of analysis by somebody who knows what they’re talking about to determine how (or whether) they apply.

Anybody who says “just do it through the Hague Convention” doesn’t know what they’re talking about.

For starters, any piece of advice that begins with “just…” is automatically suspect.  Not always inaccurate, but worth an extra bit of scrutiny.  Rather like “no offense, but…” is usually followed by something offensive.

There is no “just” doing anything about service abroad– especially where Hague doctrine is involved.  Each country has its own complexities and requirements, if indeed the “Hague Convention” applies in the first place (hint: it often doesn’t).   But where it applies, litigators have no choice but to adhere to Hague doctrine.

And at that, there’s no such thing as “THE” Hague Convention.  There are over three dozen of them, ranging from the cross-border sale of goods to child abduction to the Protection of Cultural Property in the Event of Armed Conflict.  Seriously.

Service of process is governed by the aptly-named Hague Service Convention.  Somebody who doesn’t get the distinction… doesn’t know what they’re talking about.

Anybody who says “just hire a process server in (Mexico/Japan/China…)” doesn’t know what they’re talking about.

There are two basic types of legal systems in the world– common law systems, in countries that either have or once had the Union Jack flying over them, or civil law systems everywhere else.  It’s a conundrum.  Process servers are a creature of the common law, and they don’t exist in the civil law .  At least, not in the way we common law practitioners think of them.  Instead (and I risk overgeneralizing here), process is served in civil law jurisdictions by judicial officers who act under the authority of the court.  By and large, they’re trained lawyers who enjoy a statutory monopoly on the authority to serve, in exchange for a limit on their practice area; roughly translated, they’re called bailiffs.  They are not process servers, and even if they were, it may not be legal to hire one directly, given the destination country’s position on Article 10(b).

Anybody who says otherwise… doesn’t know what they’re talking about.

Anybody who says “just mail it” doesn’t know what they’re talking about.

This one frustrates me to no end.  For starters, even where it’s valid, serving by mail is a still a bad idea.  But in much of the world, it’s expressly prohibited by foreign countries’ objections to Article 10(a).  A much-misinterpreted case of late is Water Splash v. Menon, which resolved a major circuit split and rejected the idea that 10(a) is self-negating because of a drafting error.  In holding that that service by mail is legally valid under 10(a), the decision led many to erroneously believe that service by mail is legally valid everywhere the Convention applies.  It simply isn’t– it’s only valid where the foreign country does not object.

At that, forum rules still dictate how service must be effected by mail, so just dropping the summons & complaint in an envelope and shooting them off to the defendant probably isn’t valid.  In federal court, see Rule 4(f)(2)(C)(ii).  It has to originate from the clerk, and it has to require a signed receipt.

Those folks telling you to “just mail it” are not only advocating for the cheap/lazy option– they also don’t know what they’re talking about.

Wrapping up…

Be diligent.  Read up.  And don’t just accept flippant suggestions from someone who doesn’t deal with this sort of thing on a regular basis.  Get in touch with someone who knows what they’re talking about.

 

Venice, Italy… just before the flooding of November, 2019.

A highly relevant question comes up frequently when I’m handling a Hague Service project for my fellow lawyers:

What documents do I have to serve?

The genesis of the question is pretty straightforward– and completely reasonable.  Most litigators are unfamiliar with Hague doctrine, so they’re naturally unsure about what special paperwork has to be included in the packet.  Fortunately, it’s got a pretty easy answer (ie: “you tell me!”), but there is significant nuance behind that answer.  Aside from the request forms that must accompany the documents handed to the defendant, nothing else is necessary.  Because the Hague Service Convention goes to how documents are served– not what.   The “what” of the equation is determined by forum rules. 

Easiest way to illustrate the point: a garden-variety federal suit.

The list of what must be served is determined by the Federal Rules of Civil Procedure (Rule 4 in particular) and the forum court’s local rules. So, if you would have to serve a particular document in New York or Los Angeles or Atlanta, you also have to serve it in Mexico City or Amsterdam or Venice.  Rule 4 requires only the summons and the complaint– bearing in mind that exhibits are part of the complaint– and in most federal districts, that’s all.

Sure, common practice may include service of a civil cover sheet or ADR program guide or (gasp) a particular judge’s Rules of Civility.  However, if there isn’t a “thou shalt serve XYZ” mandate, omit it.  Just because we’ve always done it that way is not a good enough reason to bear unnecessary costs– which I’ll get to in a moment.  But local rules may affirmatively require that you serve a civil cover sheet or ADR program guide or Rules of Civility (several districts require extras).  Those rules don’t distinguish whether a defendant is in the U.S. or abroad, which can cause problems– big problems if translation is required.

If your defendant is in London, no biggie.  I might charge a small printing fee if you have more than 50 or 60 pages (some rule pamphlets are a hundred pages long) but the cost isn’t unbearable.  Let’s say your defendant is in Berlin or Beijing, though.  Translation becomes a necessary part of the equation, regardless of the defendant’s competence in English, so that 100-page set of rules might cost you $10,000 to translate.  That’s a pretty penny.  So hold down the costs by omitting anything that isn’t required.  And if you just think it’s required, peruse the rules– or ask the clerk to cite the rule that mandates it.