[Covid-19 Pandemic Update, 2020: Service by mail just became an even worse idea.]
At first glance, simply mailing a summons & complaint is the easiest, most hassle-free way of serving a defendant located abroad. Looks can be (and in the Hague Service world, usually are) deceiving. Unless you have no other recourse, it’s an awfully bad idea to use such a simplistic method to serve.
Keep proof in mind.
Even if you’re on solid legal footing (which is questionable—and I’ll get to that in a moment), you have a massive fact problem. As in, “prove it, pal.”
Valid mail service, at least under federal rules, assumes that a return receipt can demonstrate a defendant’s actually getting the delivery in his hands. Even in the U.S. this can be tough to prove, but when you go outside the country it gets decidedly more difficult.
Say you’re serving a big French corporation. You use FedEx, which is widely considered as good as—if not better than—the U.S. Postal Service. FedEx drops the envelope off at the mailroom and emails you notice of delivery.
Don’t pop any corks just yet. Who signed for the thing? Is “E. Macron” a sufficient indication of the signer’s name? Is it a legible signature? What is his/her role in the company? Did you identify the appropriate address for service under French law?
That’s what I thought, counsel. You can’t demonstrate to the court that the right guy in the right place signed for the delivery. (Hint: Emmanuel Macron is the President of the French Republic. Doubtful that he’s the fellow accepting deliveries in the mailroom at Citroën.)
Even if you could demonstrate it…
Watch for validity in the defendant’s home country
The Hague Service Convention—specifically, Article 10(a)—allows for service of process via postal channels. Essentially, the “postal channels” idea encompasses good old U.S. Mail (and its foreign counterparts) and courier services like FedEx, UPS, DHL, and other regional providers. But the method is only valid if the Destination State (the country you’re serving in) doesn’t object.
In Germany? Nein.
How about China? 没有。 (Which is to say, Méiyǒu.)
Surely those efficient folks in Switzerland approve it? Nein/Non/No. (Curveball there. Switzerland speaks a whole bunch of languages. German/French/Italian…)
Maybe Japan? ほぼ。 幾分。 (Hobo. Ikubun. Which is to say, almost, somewhat. The Japanese are a bit cagey about their view on mail. Take a look here for more.)
Point is, if the Destination State objects to mail, don’t even bother trying it, because the forum court’s view doesn’t matter. It ain’t valid under the treaty. (See here for why.)
Still, if the Destination State is okay with it, you’re still not done…
Is it valid in the forum court?
In state court, look first to the applicable rules of civil procedure. If mail doesn’t fly there, Article 10(a) isn’t going to make it so (Article 5 will, but that’s a different issue). Under FRCP 4(f), yes, overseas service by mail is valid. But– and it’s a yuuuge but…
A significant circuit split throws the whole idea of Hague mail service into question. The 5th and 8th Circuits have held Article 10(a) invalid due to a drafting error.* The 2d and the 9th are perfectly okay with it, seeming to giggle a bit at the reasoning used by 5 & 8. Other circuits have avoided the issue, but the trend at the District level is to say no, nein, méiyǒu. **
But, let’s say the rules are with you…
Have you mailed it correctly?
(For more on this, see Hague Mail Service… if you must do it, do it right.)
Rule 4(f)(2)(C)(ii) requires that the dispatch of documents be addressed by the clerk of court. That is, the plaintiff’s lawyer (or the litigant) cannot simply mail the thing his/herself.
To do it right, the lawyer assembles everything, prints an airbill, and hands the unsealed FedEx envelope to the clerk. The clerk inventories the documents, seals the envelope, and tosses the thing into the outbox for Joe to pick up. (Joe is my FedEx guy. And he’s pretty cool. Aside: buy Joe a sandwich once in a while. He’s earned it.)
Now, with some verbal gymnastics, you might be able to convince the court that 4(f)(2)(C)(ii) doesn’t apply to Hague service [I submit that it does apply], but that’s an expensive argument to make when your goal is to cheap out in the first place. You might win, but the time spent briefing and arguing the thing will definitely eat the savings.
The Bottom Line
Don’t cheap out. Don’t conclude that the easy way is the right way. Even if you’re in S.D.N.Y. and you have the clerk send the thing (S.D.N.Y. has a dedicated person to handle this stuff—most other courts look at you like you have three heads), and even if it’s going to Canada or England or France, smart defense counsel might get your attempt quashed on a factual basis alone (again, prove it).
The better way, for you, for your client, and for justice, is to bear a bit more cost and use a more practical Hague method.
*I won’t detail the 5th/8th reasoning here—suffice to say that I disagree. Why in the hell would mail even be in the Convention if it weren’t a valid method? Perhaps this is why I don’t wear a robe for a living. Still, I’m chomping at the bit to get this issue resolved, and I’ve already mapped out the brief while sitting here. Nudge nudge… if you have a test case, I might just take up the appeal for free. Know what I mean? It may not matter, frankly… The Nine Eight Wise Souls might resolve the split this term in Water Splash v. Menon… see Ted Folkman’s ongoing coverage over at at Letters Blogatory for more.
** UPDATE, May 2017: The Nine Eight Wise Souls did indeed resolve the split, unanimously. See my post on Water Splash here.
*** UPDATE, May, 2017: This post originally indicated François Hollande as the President. That changed on 5/14/17.