A few weeks ago, I posted a bit of clarification as to the proof form used by foreign Central Authorities to satisfy Article 6 of the Hague Service Convention (see The Hague Service Certificate… Not Necessarily On The Form You Provide and also The Hague Certificate… it’s already in English). When we send a USM-94 to a foreign Authority, we include a blank Certificate as part of the package. Authorities use the provided blanks very rarely, opting instead to type out a new one from a Word document. This is actually a good thing, because they’re cleaner and more legible than forms completed by hand, and no cause for alarm at all. It really makes everybody’s job easier– the Central Authority itself, the Requesting Authority (me), my client (plaintiff’s counsel), and all of the folks at the court handling the case– the judge and clerks alike.
Last week, though, I fielded emails from three different clients, all with the same quandary related to the legal effect of the completed form:
Hey, Aaron, the Clerk rejected the Certificate you provided from the Central Authority. They said that you have to fill out the proof of service form required by the court.
Ahem, no. Lemme ‘splain…
For starters, most state proof forms indicate that the process server has to complete the form. But I’m not a process server, and neither is the judicial officer in the other country who effected service at my request and upon the order of the Central Authority. More importantly, though, U.S. state courts (and federal courts, for that matter) lack the authority to require a particular form of proof.
See, the Hague Service Convention supersedes state formatting rules. And Article 6 of the Convention lays out how service is proved up:
The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.
The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service. (…)
U.S. law recognizes that Certificate as prima facie proof of effective service according to the Hague Service Convention and the foreign country’s law. Northrup King v. Compania Productora Semillas, 51 F. 3d 1383, 1390 (8th Cir., 1995). And one of my favorite parts of the Constitution steps in to seal the deal: that pesky old Supremacy Clause (Art. VI-2).
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
(Of course, emphasis mine.)
In all three cases my clients brought to my attention, I speculated that we just had a relatively inexperienced deputy clerk on our hands. This Hague Certificate thing isn’t new, especially in larger jurisdictions like New York County Supreme or L.A. Superior. B’lieve me, y’all… they’ve seen this stuff before, and they don’t reject them unless somebody misapplies the law. A little nugget from Northrup King even limits the courts’ authority to question what lies behind the Certificate: “We decline to look behind the certificate of service to adjudicate the issues of (the foreign country’s) procedural law…”
My read on that: if the foreign government says it’s served… it’s served. Game over, kids. If the 8th Circuit doesn’t feel competent to refute a foreign* Authority’s interpretation of its own law, I doubt a state court would be any more competent. If the defendant contends that service wasn’t proper under the foreign country’s law, then they’ll have to duke it out in that country’s courts– not ours.
Bottom line: A Hague Certificate is pretty much bulletproof, as long as it’s predicated on a valid request. It’s not up to a state court to dictate how a foreign Authority effects service, and it’s not up to a state court to demand a particular form of proof. The Convention already does that.
* Foreign in the “you need a passport to go there” sense. Not in a “cross State Line Road to get there” sense. I do so love terms of art.