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On at least three separate occasions in as many weeks, a client or client’s paralegal has asked me for guidance on the issuance of a summons.  In each case, the clerk of court insisted that (1) a special summons was necessary in order to comply with “Hague Convention requirements”, and that (2) the foreign Central Authority had to be appointed as a special process server.

Ahem, no.  Neither is accurate.

For starters, there’s no such thing as THE Hague Convention.  There are more than three dozen of them.  Now, here, it’s obvious they mean the Service Convention, but still… just naming the proper treaty seems to be a challenge.  [For elaboration, see Überpicky Vocabulary Distinctions, Volume 2: Get the name of the treaty correct.]  More importantly, though, there isn’t a single phrase in the Hague Service Convention that requires a special version of a summons.  Not one.  If you’re suing three defendants in Chattanooga and two in China, the same summons will work for all of them.  You don’t need a different form for the offshore targets, because they do precisely the same thing: command the defendant’s answer and appearance at court.

If the clerk says otherwise, the clerk doesn’t understand the mechanics of the procedure.  The Convention addresses the manner of service [the heart of a 12(b)(5) motion] rather than the substance of the service documents [which falls under 12(b)(4)].  In short, Hague doesn’t care what gets served– just how.* Some Authorities in Asia may ask for “wet ink” summonses (that is, signed and stamped by hand– as if it’s 1987 again), but no special form is necessary.

As to the U.S. court appointing a Central Authority as a special process server, again… no.  The how is not determined by forum rules when a defendant is located outside the United States.  The laws of the country and locality in which they’re served govern the manner of service, and our courts must defer to those foreign laws.  The assertion by a U.S. court that it has the power to appoint a foreign Central Authority to serve in that Authority’s own jurisdiction… borders on insult.  Not only that, but it completely disregards the Supremacy Clause.

Now, the clerk may have a vague understanding that Hague forms must be signed by a court official, an attorney, or someone designated by the court.  That’s another matter entirely, and it misses the point that the lawyer can handle the entire thing.

* Two exceptions:

  1. Summonses that expire by their own terms.  See here for how that applies in bankruptcy court, and here for how that applies in several state courts.  In those situations, know that it usually takes longer to serve than the summons lives.
  2. Subpoenas.  They aren’t process, but then again, the Service Convention isn’t limited to process.  It covers the service of “Judicial and Extrajudicial Documents.”  To common law lawyers, that necessarily includes subpoenas, but not to the civil law community.  Subpoenas are governed by a different treaty– the Hague Evidence Convention.  A wildly different creature, that one.