Pardon the very esoteric pun. For the uninitiated, see here. You know the tune. But most of us Yanks don’t know the words:
Britannia, rule the waves:
Britons never will be slaves.
Bear with me here. From time to time, a problem will come across my desk that is simply baffling. And frustrating. American lawyers still occasionally fail to inquire about the proper procedure to serve an overseas defendant, preferring to simply do it the way they do it around home. But it doesn’t work that way. France governs how to serve process in France. China dictates how to serve process in China. And Britannia rules the ways a defendant can be served in Britannia. (I’ll move on to an illustration.)
Billy Bob Baggins, an attorney in Bree, Missouri (the county seat of Eriador County), has the idea that, well, his case is being heard in the District Court for the 236th Judicial District of Missouri, so the Missouri Code of Civil Procedure* governs the manner in which a defendant must be served. The MCCP says you should serve an out-of-state defendant by affixing a copy of the summons and petition to the door of his residence with blue masking tape (not red, not white, not battleship gray… blue).
When Billy Bob finds out his defendant, Jimmy Aragorn, is a Rhodes Scholar living in Oxford, England, he gets on the internet and finds the yellow pages for Oxford. He finds a fellow he likes and instructs the fellow to print off the documents and take them to the defendant’s address, St. Edmund Hall, Queen’s Lane, Oxford OX1 4AR. The process server knows full well that this situation is pretty silly– St. Edmund Hall is one of the colleges of Oxford University, and it houses well over a thousand students. All of them have the same address– and they’re cloistered, protected by a security guard that isn’t about to let just anybody in the gate. –>
Despite the silliness, having been denied entrance to the college by the guard in the porter’s lodge (yeah, they still have those in Oxford), the process server dutifully pulls out the roll of blue masking tape he picked up at the Boot’s on High Street, and plasters the papers to the door of the porter’s lodge, with Jimmy’s name in big block letters on the front.
SUCCESS, he reports to the Missouri lawyer. Tally ho, good chap… proceed with the hunt. That’ll be a few hundred quid.
But it’s all for naught.
See, serving process in England is governed by the Hague Service Convention. The Convention– and the seminal case regarding the Convention, Volkswagenwerk AG v. Schlunk (1988)– requires deference to the law of the location where a defendant is served. And that requires plaintiff’s counsel to not only read the treaty, but also the destination country’s declarations thereto.
The law of the forum doesn’t apply. And why? Because the Supremacy Clause says so.
This is disconcerting to the judges of Missouri’s 236th Judicial District, because they keep their dockets moving like a well-oiled machine (really, they do!) and they don’t need some prissy Brit telling them how to run their courtroom. Their ire is to no avail, because the U.K. has made pretty clear that American lawyers are welcome to hire a private process server– they just have to make sure the process server is instructed by a solicitor. Their rules also require a bit more respect for due process than the blue tape method would provide. College students are college students, so this particular defendant’s summons has a life expectancy of about thirty-eight seconds once a group of undergrads sees it on their way home from the Eagle & Child.** In short, Jimmy never gets actual notice, and English law isn’t respected, so Billy Bob, back home in Bree, is out of luck. The service he thought was solid, really isn’t.
Pity there isn’t a search engine that could guide him to the right way.
* Okay, so I tweaked the terms a bit. We have trial court circuits in Missouri, not districts. And our Rules of Civil Procedure aren’t referred to as a “Code”, so this MCCP is purely fictional.
** St. Edmund Hall, or “Teddy Hall” to those in the know, is the site of UMKC’s annual summer CLE Abroad program on English Law. A heck of a nice way to spend two weeks in August. The Hall sits less than a mile from The Eagle & Child— reputedly, J.R.R. Tolkien’s favorite pub, where he invented Hobbits and Orcs over several pints with C.S. Lewis.