DoD photo (thus, public domain). Via Wikimedia Commons.
DoD photo (thus, public domain). Via Wikimedia Commons.

Litigation is civilized combat.

That’s not my original thought, but forgive the lack of appropriate credit.  I don’t recall where I first heard it.

Sure, it’s an oft-criticized concept– thinking of litigators as warriors, hired guns, Viking marauders, etc.  But it offers perspective on how to approach a dispute once diplomacy and negotiation break down.  In this particular analogy, I offer a sport that has intrigued me for years, although I’ve never gotten into it: fencing.

Think of a lawsuit as a fencing bout.*  A thrust is an offensive move—literally trying to strike your opponent with your blade.  A parry is defensive in nature—either a block to the thrust, or a simple change in position—rendering the thrust ineffective– and when followed by a riposte, turns around on the aggressor.  In a suit, service of process is the opening thrust, and if it’s done incorrectly, it is easily parried away, and can be turned into a fatal riposte (dismissal!).

Last month, Nathan Park’s Asia in U.S. Courts blog (which I highly recommend if you’re at all interested in the Far East and its interplay with the U.S. judiciary) highlighted a parry that went wrong for the plaintiff—in a completely preventable way.  She alleged that a piece of medical equipment had injured her, and sued the manufacturer in California.  The defendant is Japanese, but has a subsidiary in Illinois.  With me so far?

Counsel served the Japanese parent by delivering the documents to the Illinois sub.

Sorry, ma’am– not valid, said the court.  The subsidiary wasn’t sufficiently shown to be an agent of the parent company.

Now, Illinois has a statute that allows precisely that sort of service, but the statute only applies to Illinois state court actions.  This statute was at the heart of Volkswagenwerk Aktiengesellschaft v. Schlunk, the seminal, end-all-be-all, Great White Whale opinion in Hague Service Convention matters,** which held that the Convention was mandatory where it applied, but because the defendant (Volkswagen) could be served in Illinois, the Convention was inapplicable.

It seems that, perhaps somebody misread Schlunk and thought “hey, let’s tag the Illinois sub based on that opinion.”  That the California court based its ruling on other grounds doesn’t validate the way the plaintiff tried to serve.

To their credit, counsel also undertook a belt-and-suspenders tactic: directly notifying the Japanese defendant by FedEx.  But they didn’t follow 4(f)(2)(C)(ii), and subsequently insisted that it wasn’t service, but merely delivery of a courtesy copy.  When the judge rejected the Illinois method, they did pursue the proper mail procedure.

But again… not so fast.  That doesn’t necessarily suffice– and it could be disastrous if the plaintiff has to enforce a judgment overseas.

For starters, serving abroad by mail presents significant factual challenges:  it’s hard to prove.  It’s also hard to demonstrate that it made it upstairs to the defendant’s actual office, even though FedEx or the Post Office might get the thing to an office building’s mailroom.  Beyond that, although the legality of the method is solid in federal court here in the U.S., it’s questionable in Japan.

Article 10(a) of the Convention offers “postal channels” as a viable option, provided the destination state does not object.  Canada, the UK, the US… we don’t object.  Germany, China, Switzerland, Mexico… they all do.

The Japanese, though, are stereotypically measured in their position.

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”

“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”

Um… huh?  They don’t object because it doesn’t infringe on their sovereignty (service of process is a sovereign function), but it might be a violation of the defendant’s rights under local law, which means the law triggers an objection?  (Which might put it in conflict with 4(f)(2)(C)!)

In other words, different from yes?

Several years ago, I was told by a friend who was studying Japanese that the language lacks a direct translation for “NO”.  They say “different from yes” as a means of not offending the listener.  And that’s what we have here.  Out of fear of offending a foreign partner, the Japanese statement on 10(a) creates a really murky situation.  Combine that with the fact challenges of mail service, and only one motivation can possibly justify using mail to Japan:  saving a few bucks.  It can’t be called a valid method of service with sufficient certainty.

The best course is, without question, a request to the Japanese Central Authority pursuant to Article 5.  They don’t take that long, and– if you’re judicious in your drafting (ie: brief)– they don’t cost much to undertake.

Back to the fencing match.  Service of process is the very first thrust a plaintiff brings to the arena.  Mail service is a pretty weak way to lead off the bout.  And there’s not a lot of justification for it when the primary method is so straightforward.

* A fencing match is called a bout.  I had to look that up.  Cool wiki on fencing terminology here.  Thrust is replaced by the more specific lunge.  Still, fun to learn new stuff.

** Although the rule laid down by the Supremes (unanimously) didn’t apply to that particular case, this was back when the Court had a little forethought and decided to fashion a rule in an opinion even though it might not apply to the case at bar.  If only they’d done so in Water Splash.