We aren’t doing brain surgery here. But we are tending to a sprained ankle of sorts, and if you don’t tend to it properly, the pain gets worse down the road, especially if the road is cobbled. Italian roads? Frequently cobbled and uneven.
Fortunately, though, serving process in Italy happens within the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter, and that’s a good thing. 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 pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. At least, not if you want it to actually work. Instead, you have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene. Okay, so you’re not James Bond, but here’s how it’s done in Italy:
Article 5 Service
- Translate the documents. Italy’s declaration to Article 5(3) requires it. [This is relatively new knowledge… until 2018, Italy’s declaration page on the Hague Conference website indicated that translation was not required. It was advisable regardless, but the page has been updated and eliminates all question.]
- 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.
- Sit tight. It may take a while—likely 4 months from submission to return of proof. But although it seems like a bit of a wait, the Italians get the job done.
- A word of warning– you may have to have the proof documents translated. Sometimes the local authority who serves the documents will send the proof directly to the applicant (you) instead of to the Central Authority. Result: service is still valid, but you have to have the paperwork translated into English. (The Central Authority sends back a Hague Certificate, which is a bit like a Willy Wonka Golden Ticket…
Article 10 alternative methods
- Mail service is available, depending on where you are, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
- Italy also allows access to an ufficiale giudiziario, the judicial official who often serves process in Italian actions. But you have to hire Italian counsel to petition a local court for a service order. This method avoids having to wait for processing by the Central Authority, but only saves a month or so—and costs a few thousand dollars more.
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.
[Author’s note: I’ve had the incredible pleasure of visiting Italy three times—four if you fudge the math on that one time that I went up to Paris during a visit to Rome. I’ve never thrown three coins into any fountain, and I’ve returned to Rome repeatedly. The last time I went over, it was with Peggy while she was staffing a CLE group tour. By the way, if you need CLE hours, holy socks, Batman. Get them in Europe and justify the trip as a business expense. You might even get to hear me lecture on the very topic of this column.]