Channeling my inner Army Brat here… when you grow up inside the fortress, your brain necessarily uses combat analogies even if the only uniform you ever wore was in the Boy Scouts. Bear with me.
Before any ground assault, whether it involves footsoldiers or mechanized troops in a gun truck, an invading army softens up the enemy with a barrage of artillery fire. They don’t just send in the guys carrying rifles. Likewise, a defending army can do significant damage if it can lay down a decent amount of ordnance on the invaders. They don’t just let the other guys walk right up to the gate of the compound and then shoot at them. [Air support helps, of course, but I’m sticking to the cannon analogy here because my best friend in college paid for his degree in part because he was in an Army Reserve artillery unit. And because howitzers are cool.]
A lawsuit is like a ground assault, and the first volley of fire comes in the form of a summons. That summons, as we all know, must be served in a manner that is reasonably calculated to put the defendant on notice of the claim against him (those are the magic words, straight out of Mullane and FRCP 4(f)). The rules are awfully particular when the defendant is overseas.
Yet, plaintiffs’ lawyers often go it alone, falsely confident that they know how to hit the target with the right projectile, if you’ll pardon my already-tortured analogy. After all, it’s just a matter of filling out some paperwork, right? I can just hire a process server, right? The treaty says I can mail it, right?
No. Maybe. Not necessarily.
Don’t assume that actual notice constitutes valid notice.
Shortly after I launched my own practice in 2016, I posted my thought that defense counsel should always question the validity of Hague service requests. I still think that, and it bears repeating, because plaintiffs get it wrong fairly often, and if nobody raises an eyebrow (neither the judge nor the defense), the case proceeds even though it shouldn’t.
Now, bear in mind—the vast majority of what I do is on behalf of plaintiffs, in every manner of case from divorce to personal injury to breach of contract… even adversarial proceedings in bankruptcy. Advising defendants to put up a fight—indeed, helping them to put up a fight—seems awfully counter-intuitive. But the fact is, if a plaintiff wins because nobody in the room knows any better, bad law gets made, and the plaintiff wins a potentially unenforceable judgment.
If you’re defense counsel, be inquisitive. Don’t just let the other fellow’s troops march up to your foxhole. Lay down a field of fire. Investigate the manner in which your client was served and don’t assume that actual notice constitutes valid notice, because they’re not the same animal. Of course, it may not be worth your while to fight a 12(b)(5) motion (even when you get the case kicked, if it’s dismissed without prejudice, the plaintiff can just start over and do it the right way). But if the plaintiff hasn’t even attempted to do it properly, you’ll have a pretty good argument to get rid of the case.
If you’re plaintiff’s counsel, remember the invasion analogy. Call in an artillery strike to make sure your first procedural step doesn’t get your case kicked or—worse—render your judgment unenforceable outside the United States.
In short, don’t DIY your service abroad—if self-help is a bad idea when you need to serve in Paris, Texas, how is it a good idea to handle it yourself in Paris, France?