This can most fairly be categorized under “how to not have to hire Viking Advocates”, but here’s a great practice tip:
If a cooperative defendant is outside the United States, don’t have them accept service. Instead, have them waive service.
I’ll grant you, this is a distinction that only a lawyer could love, but it will matter down the road. Let’s get into the hair splitting:
- Waive means “nah, don’t worry about serving me. I acknowledge that I am on notice of the suit, but I do not expect you to have to jump through a bunch of hoops to confirm it for the court.”
- Accept means “send it on over and I won’t hassle the process server or quibble about it later on.”
With the former, there’s no occasion to transmit, because it’s unnecessary. With the latter, transmission still has to happen. That is, service must still be properly effected, so Hague rules apply. Everybody involved may think acceptance is okay, but in reality it could still violate the destination country’s declarations to the Hague Service Convention. Consequently, it violates U.S. law, no matter what the forum court’s rules might say.
The magic words: “occasion to transmit”, straight out of Article 1 of the Hague Service Convention. Without such an occasion, the Convention is inapplicable, so there are no hoops to jump through. No occasion means no worries. Hakuna matata.
But if the defendant is only willing to accept service in the other country, the hoops remain, and they are on fire.* You may still have to request service via a Central Authority. In fact, there’s no question that you have to file a USM-94 in countries that object to Article 10 methods—and even in those that don’t object, the alternatives don’t necessarily work in the manner you might expect. The waiver eliminates all questions.
Another thought: in federal court, defendants are required to waive service anyway [see Rule 4(d)(1)]. You have to formally ask them to waive—complete with a SASE. And that request does not amount to service. All defendants—at least, theoretically—are so obliged. The fee-shifting rule in 4(d)(2) isn’t compulsory for foreign defendants, but that does not alter 4(d)(1). That’s the stick.
The carrot? Well, 4(d)(3) gives defendants extra time to answer. Rather than the usual 21 days in a garden-variety summons, U.S. defendants get sixty days from the waiver request… ninety days if they are abroad. A handy little negotiating tool.
If they do waive, you don’t have to hire me to get you through the flaming hoops.
Just promise that you’ll call me about that subpoena you want to serve in Germany.
* Y’know, if you Google images for “flaming hoops”, lots of tigers appear in the results. Gotta feel sorry for those critters. Really. [This tiger image is borrowed from a completely unrelated, yet thoughtful article by Michael Hurley, which I found on the Google rabbit trail. I have no idea if he had the right to post it or not.]