An interesting order & opinion from the Southern District of New York outlines the massive problem litigators face when suing—and serving—defendants in Russia. See AMTO, LLC v. Bedford Asset Management, LLC, No. 7:2014cv09913 (S.D.N.Y., 2015). In AMTO, the Bedford defendant sought to serve a third-party defendant in Russia by alternative means, specifically, via the defendant’s Gmail account, and leave was granted by the court. Ordinarily, service by email is authorized only when other avenues have been exhausted, but in Russia, there simply aren’t any avenues to exhaust.
A bit of a quandary here. Russia and the U.S. are parties to the Hague Service Convention (HSC). Under U.S. law, a plaintiff must adhere to the HSC if there is “occasion to send the documents abroad for service.” See the text of the Convention itself, as construed by Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). As such, any attempt to circumvent the parameters of the treaty is ineffective for service of U.S. process. A critical note, however, is that this requirement means different things in different countries. The methods available depend on the defendant’s location. In England or France, plaintiffs have several options. In other countries, including Russia, China, and Germany, only one method of service is legally sufficient—and this creates a Catch-22 with Russia.
Article 3 of the Convention requires member states to designate a Central Authority to receive requests for service, which are submitted by foreign parties under Article 5. The Authority is tasked with processing those requests and having service effected according to the destination country’s law and common practice. This is the method made available by all member states, no member state can object to its use, and refusal to accommodate a valid request can be based only on certain criteria (e.g.: national security or infringement on state sovereignty).
Article 12, in turn, prohibits the assessment of fees by the destination state for service that the state itself performs. The U.S. Department of Justice, our designated Central Authority for Hague requests, has outsourced its function to a private contractor. The contractor, Process Forwarding International (PFI), charges a fee of $95 for the act of serving foreign process as the exclusive agent of DoJ, either through its network of private process servers or through the U.S. mail.
Russia, understandably, views PFI’s fee as a violation of Article 12. The U.S. counterargument, it seems, is that requests undertaken by the contractor are processed by “competent persons” other than the government itself, so the fees are appropriate under Article 12(a). To be sure, DoJ officials never actually handle requests, so the argument is technically accurate. But the mere outsourcing of the DoJ responsibility is a clear abdication of a treaty obligation. To be sure, PFI gets the job done—and it gets the job done well—but the U.S. Central Authority doesn’t foot the bill!
The net result is very straightforward: under the belief that the U.S. is in violation of the Convention, the Russian Ministry of Justice flatly refuses to process Article 5 requests from the United States. (Aside: China likewise views the fee as violative, but it instead charges reciprocal fees on U.S. requests.)
Given that Russia objected to the alternative methods described in Article 10– the options available in Canada, England, and France– there is no truly practical way to effect service on a defendant in Russia.*
Yet not all is lost. Whether the defendant is in Russia or elsewhere, it is often possible to effect service by alternate means, but a good deal of creativity is necessary to hale the defendant into court.** (Email, anyone? Or Twitter, in a pinch?)
* Yes, plaintiffs can try using a Letter Rogatory, but costs are steep, they take seemingly forever, and depend wholly on the willingness of a Russian judge to order service on the Russian defendant. If that Russian judge is just in a grumpy mood that day, all bets are off. Moreover, depending on what angle you view the thing from, the Letter Rogatory itself may run afoul of the exclusive nature of the treaty.
** Some commentary argues that, in order to truly justify serving in a manner not consistent with the Convention, courts may have to deem Russia in violation– and that is within the executive’s purview, not the judiciary. But looking at things another way, courts can point to the Russian refusal and determine that Russia views the U.S. as violating, thus rendering the treaty ineffective. Truly, there’s no good answer here.