[Update: The Water Splash decision alleviated most of the confusion in May, 2017. The circuit split was resolved– decisively and correctly, in my view, but mail service still has to be valid under lex fori to be valid under Article 10(a) of the Hague Service Convention. If mail is not permitted by state court rules, the Convention doesn’t magically make it so.]
Here’s an easy question: can you serve by mail in (pick a country)? I’ve fielded this one a hundred times. The attorney asking has usually already decided that’s what he’s going to do and is just making sure.
Unfortunately, it’s not as easy as it seems. With apologies to all of those who suffered through the crucible of law school and must now live its clichés…
Generally speaking, yes, you can serve by mail in much of the world, but there are exceptions, both here and abroad. And that doesn’t mean you should serve by mail. It’s a bad idea, for more reasons than I have space here to discuss.
Article 10(a) of the Hague Service Convention seems pretty clear. Sending a summons & complaint by mail (and by reasonable extension, FedEx) is acceptable under the
Convention, provided the country you’re sending to doesn’t object. That means a clear “no” in: Germany, China, India, Mexico, Switzerland, Russia, Korea…
The answer in Japan is “probably not” (long story).
Where the destination state doesn’t object (think England, France, Canada, and others), it’s still not a great idea. You may be on a solid legal footing, but the factual ice your other foot rests on is awfully thin. Put another way, good luck proving it, pal.
But the destination country isn’t the only critical element of the analysis. You must first determine whether mail service is valid in the forum hearing the case.
Local rules don’t allow it? Sorry, 10(a) is not going to fly, regardless of the destination country’s views.
Federal rules do allow it, but be wary. Overseas mail service originates with the Clerk of Court, rather than the attorney’s office.
Moreover, two circuits and numerous federal districts have held that a drafting error in Article 10(a) is fatal to its validity. The 5th and 8th Circuits keyed on the drafters’ use of the word “send” rather than “serve”. But rejoice, 2nd and 9th! Your appeals courts think Five and Eight goofed. **
I happen to agree with Two and Nine, but I honestly think Five and Eight will overturn themselves when the right case comes along. (Hint: if you have a test case in either Circuit, let me take a crack at it.)
Truly, the legal validity of Hague mail service doesn’t matter. It’s usually a waste of energy to try it in the first place because you often can’t demonstrate conclusively that the right person at the defendant’s home (or defendant entity’s office) actually received the documents.
Far better to ensure that service is effected in a manner that leaves no question of fact.* Article 5 is awfully handy for that, as is Article 10(b)/10(c) where available.
*A note about mail service’s use by foreign Central Authorities under Article 5: if the foreign authority says it’s valid, it’s valid. Period. The U.S. court can’t dissect the foreign government’s reasoning on the matter, and should defer. Earlier post on serving U.S. servicemembers abroad touch on that issue here and here. Bottom line: a foreign authority’s use of mail validates it under Article 5. As such, Article 10(a) analysis is inapplicable, and the Supremacy Clause makes the treaty override local rules.
** Update… the test case happened. See my post on Water Splash.
Image credit: Chris Downer, via Wikimedia Commons.