A client emailed me the other day, asking how to serve a foreign defendant. A pretty common occurrence that prompts either a “take a look at this blog” reply or a short & sweet rundown on what they need to do. It comes up pretty regularly, and there’s really no good answer for it: how do you best serve a defendant that isn’t in a Hague country?
The answer that I quickly dashed off … “forgive the law school answer here, but it depends“, followed by some brief detail. One of the double-edged swords of the Hague Service Convention is that (on one hand) it provides certain, specific avenues to service, but it also (on the other hand) frequently limits those avenues. Sure, a considered analysis is needed for serving defendants in England, France, and Canada. But Mexico, China, and India… there’s one way to do it—period.
But what of those non-Hague places? Well, a whole bunch of important questions will determine how to best serve. For the purpose of illustration, let’s say your defendant is in the SIJORI Growth Triangle—an industrial compact of sorts, between Singapore, Malaysia, and Indonesia. I pick that area because it’s seen a massive growth rate in recent years, and because all three countries lie outside Hague. Let’s also say you’re in federal court, just for the sake of a simpler illustration. Rule 4(f) will govern how you serve regardless of the defendant’s overseas location.
The bunch of questions:
- Do you have an address for the defendant? If not, find one. Seriously—that is the ultimate threshold question. I can’t help you if you don’t have this critical piece of information—although, I can help you find it.
- (For rhetorical purposes…) Is the destination country a Hague Service Convention member? Not in our illustration here, but if it were, the next question would be “do they object to Article 10?” Set that aside for this discussion.
- Where are the defendants’ assets? The absolutely critical point, because if you have to go offshore to enforce a judgment, one of the very first things a foreign court will look at is the manner in which the defendant was served, and if they find it inappropriate, you’re done. This makes perfect sense—because if they can reject an enforcement action on procedural grounds, they can avoid the tall weeds of substantive law. [If the defendant has U.S. assets—or even Canadian or British assets—you can rest a bit easier.]
- Does the defendant speak English? If it’s an entity doing business in the U.S., it will be presumed competent in English. But an individual… not so fast. You may have to translate into Malay or Bahasa or any of a number of different dialects, to ensure that the defendant’s due process rights are respected—regardless of how you serve. If the defendant isn’t in an English-speaking country, you may have to translate whether it’s an entity or not. So be sure to keep things brief; federal court is a notice pleading venue, after all. You don’t get paid by the word, but translators do.
- How much is this defendant’s involvement really worth? That will determine whether a more costly method (Letter Rogatory, local counsel…) is warranted, rather than simple mail service, or if the whole analysis is a waste of resources.
- Is service by mail actually viable? I’m not a big fan of mail service except in the rarest of circumstances. It’s usually a bad idea. But if the defendant has a history of actually allowing its employees to sign for FedEx or UPS deliveries, you’re probably going to be okay.
- Does the law of the destination state prohibit service by mail? This one’s doubtful outside the Hague list—but if the other country has a statute or caselaw that forbids mail service, it violates 4(f)(2)(C) [“unless prohibited by the foreign country’s law”].
- Does the destination state prohibit personal delivery? This one is also doubtful outside the Hague list, but again– if the other country has a statute or caselaw that forbids mail service, it violates 4(f)(2)(C). In most civil law jurisdictions (essentially, everywhere that wasn’t once a British colony), service is a sovereign function or reserved to a guild monopoly. You can’t necessarily just hire a guy to walk up to the defendant and hand him the documents.
It should be apparent that there isn’t an easy answer to the question, so the SIJORI defendant– whether in Singapore or Malaysia or Indonesia– necessitates some anaylsis. To be sure, this isn’t an exhaustive list—but the ultimate point is that if the defendant doesn’t have accessible assets, you will have to enforce the judgment abroad, so that procedure should always be foremost in your mind when deciding how to serve.
“Just mail it” could be the worst thing you can do. [Oh, and if you do decide to mail it, do it the right way!]