“Right” is an arguable concept in this instance, but bear with me.
Among the alternative methods articulated in Article 10 of the Hague Service Convention is service by “postal channels.” In other words… good old mail service. That generally includes private couriers like FedEx, UPS, and DHL, who are just as reliable as (if not more reliable than) the U.S. Postal Service. The Postal Service actually uses FedEx as its overseas contractor, so most of us just cut out the middleman in the rare instance that we do use mail to serve abroad.*
Of course, I’ve railed before against the inclination to use mail as anything but a last resort. Regardless of its legal efficacy, mail presents factual challenges (ie: prove it, pal) that may not be so easily overcome. It only seems the easiest/cheapest/quickest way to go on its face. Sure, it may be cheaper at the outset, but if it cannot be proven up, not only is the shipping cost wasted, but so too is the time taken up before concluding that it’s not going to work.
But if you must serve abroad by mail—and sometimes you really must—do it the right way.
In his latest post on the very excellent Letters Blogatory, Ted Folkman delves into the linguistic weeds over the meaning of Article 10 in tandem with FRCP 4 and the recent Water Splash v. Menon decision. Article 10(a) permits litigants to serve by postal channels, absent objection by the destination state (think Mexico, China, Germany, and more). Water Splash resolves a circuit split to definitively state that 10(a) is not nullified by a drafting error.
But neither of these expressly authorizes mail service. That is, neither 10(a) nor Water Splash point to the local post office and say “yes, counsel, go there, regardless of forum rules.”
This an incredibly picky distinction, but it’s a critical one. In Ted’s analysis (with which I agree wholeheartedly), the fact that the Convention permits mail service assumes that it must be valid under forum rules to begin with. If a particular state’s rules do not specifically empower a litigant to serve by mail in New York or Nevada, then the Convention does not magically make it so in the Netherlands.
Water Splash doesn’t get into the weeds—and Ted rightly criticizes Justice Alito’s otherwise spot-on opinion for avoiding the authorization/permission question. Then again, Water Splash was a Texas state court case, so the question wasn’t truly at the heart of the dispute. [Some dicta would’ve been nice.]
Article 10(a) likewise does nothing affirmative. The text of Article 10 really says that, as long as the destination state doesn’t object, the Convention won’t interfere with a litigant’s use of mail service. It does not say that a litigant may use it.
But FRCP 4(f)(2(C)(ii) does say that a litigant may use it. Under certain conditions.
So the question for real practice is this: how do you do it the right way? It’s necessary to parse Rule 4(f), particularly 4(f)(2).
Now, 4(f)(1) really just codifies the Volkswagenwerk Aktiengesellschaft v. Schlunk decision—essentially, if the Hague Service Convention applies, adhere to it. And it uses the word “authorizes”, but that’s fairly useless, because the Convention only authorizes Central Authority service (though I’m not 100% sure it even does that). Again, it doesn’t authorize mail—it just declines to interfere with it.
So 4(f)(2) is the operative part: “if there is no internationally agreed means, or if an international agreement allows but does not specify other means…”
Sections (A) and (B)… not really applicable here, because the whole point of the Convention is to define how the destination state wants it done, and render Letters Rogatory unnecessary. The former puts you into Article 10(b) or 10(c), while the latter is moot in Hague situations.
But (C) is where the rubber meets the road, folks. Specifically:
using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt
Pretty straightforward stuff there.
The practice tip takeaway… follow 4(f)(2)(C)(ii) and GO THROUGH THE CLERK.
Okay, it’s marginally arguable that you have to. Okay, the clerk may look at you like you have three heads. Okay, you might prevail over the defendant’s 12(b)(5) motion [assuming that you can overcome a massive fact problem].
But it’s a hell of a lot cheaper to just do it right in the first place. Just get the documents together for the clerk, print a shipping label, and hand them the envelope unsealed. They’ll take care of the rest.
* Sometimes, mail really is the only reasonable option, so my criticism of it is not absolute. And to be sure, I charge more for mail service that I do for regular Article 5 service– it requires a whole lot more care and feeding.