The office of New Hampshire’s Secretary of State. Royalbroil via Wikimedia Commons.

A slew of cases have come across my desk lately, involving plaintiff attorneys who have ostensibly already served foreign* defendants via statutory agents in the forum state.  After plaintiff’s counsel spends several thousand dollars to defeat a motion to quash, most of them conclude that it might have just been cheaper in the first place to serve the defendant in the foreign jurisdiction instead of via the statutory agent.  (I make that argument regularly on the few listservs to which I subscribe– why not save yourself the aggravation and just serve the defendant where they are, instead of going the seemingly cheap & easy route?)

The best examples of these “statutory agent” situations are (1) foreign entities doing business in the forum state and (2) non-resident motorists who drive in the forum state.  For instance, let’s say a statute says specifically that “any act by a foreign entity to conduct business in this state shall by implication appoint the Secretary of State as its attorney in fact for the purpose of service of process in any action brought in the courts of this state.”

  • In short, if you make money here, we can serve you here via the SoS.
  • Or, the corollary, if you drive here, we can serve you here, perhaps via the DMV Director.
  • Or, in the case of Volkswagen in the 1980s, if you form a subsidiary here, we can serve you here via that subsidiary.

It seems pretty fair and it seems pretty straightforward.  But looming large over the analysis is a due process question… which is to say, maybe it’s not so fair after all.  In my March 2017 post, “You can’t simply serve a U.S. subsidiary,” and two weeks later in “You Can’t Simply Serve the Secretary of State,” I cautioned against assuming that serving via these statutory agents was compliant with due process and with the Hague Service Convention.

The threshold question:  where does lex fori deem service to have been effected?

  • If service is deemed to be effected in the forum state, you still have to undertake a due process analysis.  Is it reasonable to calculate that the statutory agent will do what’s necessary to ensure that the defendant is actually afforded notice and an opportunity to defend?  (See Mullane.)
  • If service is deemed to be ultimately effected upon delivery in a foreign country, you have to analyze whether the Convention applies, and then you have to examine what the statutory agent actually does with it.
    • Does the statutory agent dig deeper to see if translation is required?  (Highly unlikely.)
    • Does the agent undertake to translate the documents?  (Bet against it.)
    • Does the agent properly convey the documents to a foreign power?  (Odds are, they don’t read this blog.)
    • Does the agent even have the authority to make such a request?  (Again, highly unlikely.)

In all probability, the agent simply drops it in a FedEx box and calls it good.  In much of the world, that doesn’t get you where you need to be.

Past the threshold, let’s say you do successfully serve the statutory agent.  Then what?

  • Wait 21 days (the time indicated in a federal summons) and then simply move for a default?  Hardly.  Any judge worth his or her salt is going to inquire about your methodology.  You’re going to have to demonstrate that the defendant is truly aware of the proceedings and is merely blowing off the obligation to appear.  Mullane still looms large.
  • Or let’s say the defendant actually does show up, but in a limited appearance to quash your service.  What then?  You could spend far more to win that battle then you would spend to simply serve the defendant directly in the first place.

Yes, you may identify a statutory agent, but that doesn’t mean the agent would be a truly effective conduit for service.  In a whole bunch of situations, it still ends up being less costly to serve overseas pursuant to the Convention.

  1. Defense counsel will spend money to argue, so it’ll actually be cheaper for you to just hire somebody like me.
  2. In a PI case, outside assistance counts as an expense… your DIY effort to serve by yourself comes out of your contingency.
  3. You get a default judgment because the statutory agent doesn’t properly forward the summons… then what?  Go overseas to enforce the judgment?  Your odds on that are pretty slim.

It’s truly not so arduous to jump through some Hague hoops, especially if you have help (wink wink, nudge nudge).  And jumping through those hoops can really prevent headaches down the road.

* Foreign can mean different things.  There’s foreign in the “you need a passport to go there” sense, and foreign in the “across State Line Road” sense.  The former is general in nature, while the latter is a term of art delineated by interstate and international boundaries.  In the statutory sense, use the term of art.

Manila– a thriving, modern metropolis. Patrickroque01 via Wikimedia Commons.

I say all the time that we’re not building rockets here.  But we are building a ship of sorts, and a leaky ship means lost cargo, and perhaps the inability to reach port.  Serving process in the Republic of the Philippines is now subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Noting that the Foreign Ministry has yet to submit declarations to the Hague Conference on Private International Law, the following guidelines are drawn from Administrative Order No. 251-2020, by the Supreme Court of the Republic of the Philippines.

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 in the Philippines and have it actually do what you want it to do.  You have to file a Letter Rogatory, which is dramatically different from serving a summons or notice.

Now, here’s how service of everything else is done…

Article 5 Service

  • Again, no declaration to Article 5(3) discusses translation, but the Supreme Court’s Order indicates that documents must be in either English or Filipino.  Your docs are in English, 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, along with the requisite advance fee.
  • Sit tight. It may take a while from submission to return of proof.  The judge is just going to have to accept that fact, because there is no viable alternative…

Article 10 alternative methods

  • Forget them, because without any declarations to Article 10, it’s impossible to tell the forum judge with a straight face that they’re valid.  True, Article 10 says specifically that “Provided the State of destination does not object, the present Convention shall not interfere with…” those methods.  It could be argued, then, that because they haven’t expressly objected, alternatives are valid.  I wouldn’t take a chance just because a quicker & cheaper alternative* seems plausible.  There is a mechanism in place that leads to essentially bulletproof proof of service.

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

Seriously—that’s all there is to it in the Philippines, but don’t get excited just yet.  The method is straightforward and simple, but this is a brand new procedure for the Philippines’ courts.  Until there’s a track record, predictions are impossible.

 

* I’m looking at the mailman here.  Quick & easy is a bad idea.

Despite the logo here, I heartily recommend against using Google Translate for legal document translation. It’s awfully handy at gelato stands in Italy, though– especially with the camera function! (Image courtesy of Google, via Wikimedia Commons.)

Last month, I posted that, yes, foreign authorities actually read translated documents— and if the translation is substandard (or just flat-out horrible), Hague Service Requests are rejected, sometimes with a quickness, and occasionally after nearly a year.  But it’s been a while since I offered thoughts about minimizing the cost of translation while maintaining requisite quality.

Identifying what’s included is simple, really: if you have to serve a particular document on defendants in Paris (Texas) or Berlin (North Dakota), you likewise have to serve that document on defendants in Paris (France) or Berlin (Germany).*  And if you have to serve in France or Germany (or dozens of other countries), you have to translate the document into the local language– every word, every page.

Unless you’re serving in an anglophone jurisdiction, the defendant’s competence in English is utterly irrelevant.  Among the exceptions to that: Finland, Israel, and the Netherlands.  Even then, the idea is a bit on the bubble.  That’s it.

Or is it?

Well, yes, it really is the end of the “rule”, if you will.  But dig deeper:  if you have to serve a document a block from the courthouse that issued the summons, you have to serve that document on a defendant in an overseas jurisdiction.

HAVE. TO. SERVE.

What you have to serve.  Shall serve.  Must serve.  Insert your own synonym that indicates a mandate.

In most federal courts, service of the following documents isn’t required:

  • Civil cover sheet
  • ADR Information Pamphlet (often totaling several dozen pages)
  • Judges’ Individual Rules
  • Standing Orders
  • Emergency Orders (particularly a burden during Covid-19)
  • Electronic Filing Notice
  • Other ancillary documents

They simply aren’t required nationwide.  Look to Fed. R. Civ. P. 4, which is crystal clear:  “A summons must be served with a copy of the complaint.”  That’s it.  Summons, Complaint, end of list.**

My advice to my clients (all lawyers and law firms) is this:

If there’s no rule that says “thou shalt serve XYZ,” omit XYZ from the service packet.

Why?  Because XYZ unnecessarily runs up the cost of translation.  And of printing.  And of shipping.

Don’t include XYZ just because you ordinarily serve it as a matter of course.  Don’t include it because you it’s considered “best practice” by the law firm consultant community.  Just stick to what is required.

End of rant.  Now go tell your clients you saved them a bunch of money.

*  Lex fori governs what must be served.  The Hague Service Convention and the law of the destination jurisdiction govern how it’s served.

**  Three important things to note here:

  1. Exhibits are part of the Complaint.  This can be particularly costly in IP litigation, where I’ve seen cases with a dozen patents that drive translation costs into the six-figure range.
  2. Look beyond just the FRCP– local rules may actually require some of those ancillary documents, and that varies wildly by district.
  3. State rules are all over the map, so make sure there’s a requirement before incurring the expense!
Palais Trautson, home of the Minsitry of Justice. Thomas Ledl via Wikimedia Commons.

I say all the time that we aren’t building rockets here.  But we are building a ship of sorts, and if the vessel is leaky, we won’t make it to port and the captain will be grumpy.  Woe be his kids who are running around town singing nonsense songs and wearing drapes.*

Do it the right way, and your journey is smooth.  Beginning September 12, 2020, serving process in Austria is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter– and that looks to make things easier– and significantly cheaper– than it was before.  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 help with subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad, at least, not if you want it to have much effect.  Instead, you have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Austria is not a party to the Hague Evidence Convention).  The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.

Now, here’s how service is effected in Austria, noting that Austria has not fully expressed its wishes regarding certain issues arising under the treaty:

Article 5 Service

  • Translate the documents. Under the pre-Hague regime, Austria not only required a translation into German– they insisted that their own certified translators do the work.  Although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.  (And to be sure, they may still require the work to be done in Austria, even though this arguably conflicts with the treaty.  Absent more guidance, it’s impossible to say.)
  • 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 appropriate Central Authority.  In the case of Austria, it’s the Bundesministerium für Justiz (Ministry of Justice).
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Alternatives are not available, because Austria objects to Article 10 in its entirety.  Service in Austrian actions is within the purview of the court– not plaintiff’s counsel– and statute prohibits service of foreign process by mail, so Article 5 is the only way it can be done.  Austria filed its declarations with the Dutch government months ago, but this information has yet to post to the information site at the Hague Conference on Private International Law.

Seriously—that’s all there is to it.  The method is straightforward and simple.  The declarations and Central Authority information of all the other countries in the treaty—can be found here.  Once more substantial guidance is issued, this space will be updated.

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.

* For the uninitiated, Austria is home to the legendary Von Trapp family, the subject of one of my favorite musicals.  I don’t sense that the real Captain Von Trapp was as grouchy as Christoper Plummer made him out to be.  Until a couple of years ago, I had two mental images of Austria.  One was bucolic Salzburg “in the last golden days of the thirties”—that of the Von Trapps and The Sound of Music.

The real Georg von Trapp as a younger man. Public domain, Wiki.

The second was the snowy Vienna of Amadeus—that of footlit operas, a clownish genius in Tom Hulce’s portrayal of Mozart, and an Emperor who looked a little too much like the vice-principal from Ferris Bueller’s Day Off.

Tell me I'm wrong.
Tell me I’m wrong.

In 2015, Woman in Gold changed that… the list now includes the works of Gustav Klimt and an epic legal battle arising from the Nazis’ theft of priceless art works.  I watched the film on a transatlantic flight and was thrilled, but bemused, because the young lawyer handling the case (Ryan Reynolds) walked into Austria’s consulate in Los Angeles with his client (Helen Mirren) and served process by sliding a summons through a banker’s window to a receptionist.

Alarm bells started going off in my head, because for one thing, you shouldn’t hire Deadpool to represent you.  Not even Wade Wilson can just walk into a consulate and drop a summons on the receptionist’s desk.  The Foreign Sovereign Immunities Act says otherwise.  (To be sure, I tried to contact Randy Schoenberg, the lawyer played by Reynolds, to see how he actually did it.  No answer.  Either he did it some other way and Hollywood embellished, or defense counsel didn’t know how easy it was to get that thing kicked.)

Woman in Gold, Gutav Klimt, 1907
Woman in Gold, Gustav Klimt, 1907

In any event, a fantastic movie with a compelling story, and a stunning work of art at the center of it all.

Way back in March, 2017, I posted a blurb about the limitations on serving offshore parent companies via their U.S. subsidiaries.  In short, I argue, you can’t simply serve a U.S. subsidiary and call it effective on the foreign parent.  You have to have a compelling reason to pierce the corporate veil.

This is basic 1L Civ Pro stuff.  It’s just too bad they never even mentioned service of process in either semester of Civ Pro in law school– jurisdiction and joinder were far too complex to allow for coverage of the basics, I guess.*  Fortunately, it was touched on a bit in BusOrg class the following year, but even that 2L discussion wasn’t sufficient to fully flesh out the idea for practitioners.  It’s really only as a 4L (that’s a practicing attorney, y’all) that anybody truly digs into this stuff.

So come now the good folks at Winston & Strawn who posted in July, “Court Finds Service of Process on Foreign Corporation’s U.S. Subsidiary Would Be Improper” on their firm’s blog.  Seems the plaintiff in a patent infringement suit (UNM Rainforest Innovations v. D-Link Corporation, W.D. Tex.) wanted to serve a Taiwanese defendant company by delivering the summons and complaint to the registered agent for the defendant’s U.S. subsidiary.  The court took issue with such an undertaking, and denied the motion (in part).  Pretty logical, if you ask me, even though I don’t wear a robe and bang a little wooden hammer on my desk for a living.  The court’s July 13 order:

The Court recognizes the additional expense and time required to serve D-Link under Taiwanese law and sees these as a valid justification to grant an alternative method of service. (…)
However, at this time, the Court finds that Plaintiff’s proposed means of alternative service fails to satisfy the due process requirements afforded by the United States Constitution. (…)
The Fifth Circuit held in Lisson that regarding foreign defendants, even if its foreign parent corporation does not explicitly authorize a domestic subsidiary as an agent for service, the subsidiary might still be capable of receiving such service. When applying a state long-arm statute, “as long as a foreign corporation exercises such control over the domestic subsidiary that the two entities are essentially one, process can be served on a foreign corporation by serving its domestic subsidiary — without sending documents abroad.”  Thus, a foreign corporation receives proper service through its domestic subsidiary where the evidence shows that one is the agent or alter ego of the other.

(Citations omitted.**)

Ultimately, the W.D. Tex. court ordered service to be effected pursuant to 4(f)(2)(C)(ii), which I contend has always been a bad idea in most cases, and is an even worse idea in the time of Covid-19.  To be sure, leave of court isn’t necessary– serving by mail under 4(f)(2)(C)(ii) is a matter of right as long as it isn’t prohibited by treaty or foreign law– but despite its legal validity, it’s not very likely to work from a fact perspective.  Truly, the better way would be electronic service under 4(f)(3)— which does require leave of court– or, if overseas enforcement might ultimately be required, a Letter Rogatory under 4(f)(2)(B), which would carry the judge’s signature.**

 

* I ranted about this once in a CLE lecture I gave, with both of my Civ Pro professors in the room.  It really is a tongue-in-cheek criticism, given the hundreds of topics that simply cannot be covered in two semesters.

** Note, however, Lisson v. ING GROEP N.V., 262 Fed. App’x. 567, 570 (5th Cir. 2007), which lays out a nice analysis of when/how alter ego service is valid.

Native languages of extreme northern North America and Siberia have several different words for “snow”.  I went to Alaska on a cruise once, but I’m definitely not qualified to translate.

Hague Service Convention requests constitute 99% of my practice– that’s a literal statistic.*  Easily half of them are sent to countries that haven’t caved in to the pressure (good for them) and made English an official language.  As such, the lion’s share must be translated into German or Italian or French or Korean… you get the idea.  In most instances, my clients just have me take care of the whole shooting match, from soup to nuts.  Occasionally, though, a firm or solo lawyer has a relationship with somebody who purports to translate legal documents as a matter of course, so they prefer to handle the linguistic work themselves.  To be sure, we’re not a translation provider– we’re a law firm– so if you want to do your own thing, I don’t object.

But I do disclaim the heck out of it.

Among the most frequent reasons Hague requests are rejected: bad translation.  If it’s my guys who goof it up, I have somebody to yell at (pretty rare, as I work with some of the best in the business), and they can get things fixed in pretty short order.  If it’s my client’s translators who goof, well, I can’t help them.  They have to handle the heavy lifting, and then I have to hit them with an additional fee for resubmission of a request once the translation problem is remedied.

While I disclaim the burden of ensuring solid translation work for clients who insist on getting their own, I still offer a bit of guidance via this blog…

A few off-the cuff-suggestions in conversations over the phone:

  • Don’t just ask Emily the Intern to handle the work for you because she spent last semester in Costa Rica.  Unless she’s also a translation major, she’s not qualified to do it, and you’re just asking for disaster.**
  • For crying out loud, don’t use Google Translate.  Or any machine translation, for that matter.
  • And the whole point of this little rant:

YES, FOREIGN AUTHORITIES WILL READ YOUR TRANSLATION TO MAKE SURE IT’S ACCURATE.

If you’ve cheaped out, it’ll get kicked back to me (or you), sometimes with a quickness, sometimes after nine months’ waiting.  Either way, you’re back to square one.

 

* In the literal sense of the word literal.  The other 1% is Guardian-ad-Litem work on behalf of CASA– which is incredibly rewarding– I highly recommend it.  Just don’t ever get a parking ticket in KCMO Municipal and tap me on the shoulder to handle it.  I can’t help you, apparently.  [For the record, my client (Peggy, my wife) was guilty, and the prosecutor was happy to knock the thing down to $25 so she wouldn’t have to jack with it.]

** My former intern, actually named Emily, *is* a translation major, so she’s qualified.  I still never had her translate for me, because she was more valuable to me on other projects.  So is your staff, whether intern, L.A., para, or associate.  Their time is worth far more than you think.

Yeah, Toy Story came out 25 years ago.  But you can catch it today on Disney Plus.  Sing along with Randy Newman.  Yes, I know you’re 54 years old and your kids are grown.  Watch it anyway.

One of the biggest fears my clients face is dismissal under a forum court’s deadline for service.  In federal court, that means 90 days, and in most states, it means anywhere from 60 to 120.  They’re often frantic about the possibility that some grumpy judge is going to dismiss them.  I strive mightily to put their minds at ease.

Fear not, brave Counselor.  You’ve got a friend in Rule 4(m).

The gist of Rule 4(m)?

“Get the summons served in 90 days or you’re out of here.  But, oh yeah… the 90-day deadline only applies if the defendant is in the United States.“

Outside the U.S., plaintiffs are subject to a reasonable diligence standard, which usually just means that they have to start the ball rolling within 90 days.  As long as they’re not dilatory (I had to look it up… they’re not dragging their feet), even the grumpiest of judges isn’t going to dismiss the case, especially if the defendant is in one of the single-method/longer-wait countries like China or Mexico or India.  This is especially true amid the Covid-19 pandemic– judges understand (as of this writing, the U.S. lags behind just about every other country in dealing with it).

Unquestionably, you have to serve according to the Hague Service Convention, if it applies.  Rumors abound that Central Authorities are all shut down (no, they’re not) and that everything everywhere has just stopped (no, it has not).  Sure, time expectations vary wildly from just a few months ago, pre-pandemic [see Yes, They’re Still Open, my post two weeks ago, for more on that], but…  even if Central Authorities do shut down again, and even if they do take seemingly forever, there’s still no reason to not get things lined up to go.  Set requests up so they get into the pipeline as soon as possible.  A few reasons why:

Grumpy judge. ^^^
  • They’re Called Deadlines For A Reason…. where they actually apply.  Adhere to them as best as you can.
  • First in, first out… that’s how most Authorities roll.  So if you wait until things normalize, you’re at the back of the line, waiting to get on the Buzz &Woody ride at Disney World, distraught that your ice cream is melting.
  • Having only one option in Germany doesn’t mean you have only one option in the Netherlands or England.  They can go pretty quickly with the magic of Article 10(b).
  • If translation is required, it’s going to take some time, too.
  • Just about every state (sorry, Wisconsin & Michigan) has a safety valve built into procedural rules, but reasonable diligence is still key.*
  • Even after service is effected overseas, proof takes longer than you think, so it’s best to at least initiate things as early as is practical.**

You’ll be glad you got everything moving.  Just don’t fret that overseas authorities take so long to finish the job.

 

Yes, I know it’s summer and we’re in the middle of a global health crisis. Watch this movie anyway. It’ll brighten your mood.

* Of particular interest: New York, whose view on the matter is beautifully illustrated in Bumpus v. NYC Transit Authority.  CPLR 306-b requires service in 120 days, but Bumpus specifically acknowledges circumstances beyond the plaintiff’s control, including the delay caused by Hague strictures.  [Bumpus also specifically reminds me of A Christmas Story, so it’s incredibly easy to remember the citation.]

** Be careful about removal, though.  If you file in state court and anticipate that a U.S. defendant will drag you to the federal court up the street, you might want to wait.  That’s not foot-dragging– it’s making sure things are done properly.

Phillip Burton Federal Building, San Francisco. Sam Wheeler via Wikimedia Commons.

Ah… faith in humanity restored.  Just a bit.

In a rant yesterday (NO, 4(f)(3) is NOT co-equal to Hague channels!), I took issue with the impossibly bad logic in another order approving electronic service on a Chinese defendant under Rule 4(f)(3).  Simply put, S.D. Cal. got it wrong, the latest in a string of cases steeped in impossibly bad logic.  But at the other end of the Golden State, Magistrate Judge Alex Tse, who has been on the bench a mere six months, got it right.

In Facebook, Inc. et al v. 9 Xiu Network (Shenzhen) Technology Co., Ltd. et al., No. 4:19-cv-01167 (N.D. Cal.), Judge Tse recommended that the District deny the plaintiff’s motion for leave to serve various Chinese defendants electronically.  His holding (if it can be called that before adoption by the District Judge?) relied on a far more accurate interpretation of Rio Properties v. Rio International Interlink than the Victaulic opinion, which drew so much of my ire yesterday.

The plaintiff in Rio was based in the United States and attempted to serve a defendant in Costa Rica.  Costa Rica isn’t a signatory to the Hague Service Convention[*], so service under 4(f)(1) wasn’t applicable. Service under 4(f)(2), in contrast, was theoretically possible, but the means of service identified in 4(f)(2) weren’t practical under the circumstances; so rather than first attempt service under 4(f)(2), the plaintiff asked the district court to authorize service by e-mail under 4(f)(3), which the district court agreed to do.

Bingo.  Going on…

It is easy to understand why courts, after reading Rio, have concluded that the methods of service identified in the Hague Service Convention are not exclusive.  Service under the Convention proceeds through 4(f)(1); and Rio held that Rule 4(f) doesn’t prohibit a plaintiff from bypassing 4(f)(1) and first requesting an alternative means of service, such as service by e-mail, under 4(f)(3). The implication seems to be that the methods of service identified in the Convention are optional, and that even if the Convention applies, service by e-mail may be utilized if approved by the court.

This reading of Rio, although understandable, is too expansive.  Rio interpreted Rule 4(f), not the Hague Service Convention; and when the Convention applies, it must be considered. The Convention is a ratified, self-executing treaty, and as such is “the supreme law of the land.” (citations omitted.)

I disagree on one point there:  Judge Tse is entirely too kind.  It’s not easy to understand why courts have concluded that Hague methods aren’t exclusive– it’s utterly baffling in light of Schlunk, and I’ve been beating my head against a wall over it for years.  To be sure, I don’t think Rio analysis is even necessary in light of Justice O’Connor’s logic– the stronger basis for denial of 4(f)(3) alternatives in China– but it does highlight the problem with Gurung and its progeny.

Still, this one reaches the right result on the specific request.  If the Central Authority says an address is wrong, then that (as Judge Tse indicates) takes the Convention out of the equation, but that doesn’t seem to be the plaintiffs’ basis for the motion.  Regarding the as-yet-unaddressed defendants, the next step is to invoke Article 15 and proceed toward default.**  I sense that China is unlikely to ever effect service in this case, so a default seems appropriate under the treaty’s terms.  In that instance, the defendant’s due process rights must still be vindicated, and that’s where Rio and 4(f)(3) alternatives can enter the fray– but only to provide Mullane notice, rather than formal service.

* Costa Rica actually is a Hague party now, but wasn’t in 2002, when Rio was handed down.

** True, this triggers overseas enforcement concerns, but China isn’t going to enforce a U.S. judgment anyway.

Hat tip to Katerina Ossenova, my colleague at the Department of Justice, for pointing out this case.

PAY ATTENTION TO WHAT THIS WOMAN SAYS.

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

Wrong wrong wrong wrong wrong.

(You should sense a rant coming.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And don’t get me started on Sinotype…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Focus on the word “known” for a moment.

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

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

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

Otherwise…

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

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

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

*** Note my glowing review of that place.

**** I made those names up.