A few weeks back, a personal injury lawyer in Memphis* called to ask how he could serve a defendant in Switzerland.** I told him that the Swiss have a fairly straightforward view of the Hague Service Convention, and that there was only one effective way of getting the job done: an Article 5 request to the right Cantonal Central Authority. No muss, no fuss, you get a proof back in a matter of two or three months.
“But how do they do it?” he asked.
Well, says I, it varies by Canton (not exactly a federal state, but not exactly a county either). It’s usually a local public prosecutor or some other judicial officer who carries it out. Frankly, though, it doesn’t matter, because as long as you submit a properly completed Request, the proof the Authority sends back to you is like Kevlar. Again, no muss, no fuss.
“But do they actually serve it personally on the defendant?”
If he’s home, yeah. If he’s not, they might try him again later, but in quite a few cases, they slap a Post-It note on his door and tell him to come down to the police station or the post office to pick up a sheaf of documents. If he doesn’t do it within a certain time frame, they drop the docs in the mail and deem him served anyway. The philosophy is this: when a judicial officer tells a Swiss citizen to come and get an envelope, they comply.
At that, he told me that wouldn’t fly. Tennessee rules require personal, in-hand service, so the Swiss would have to do better than that.
He insisted that it’s a Tennessee case, so Tennessee rules control how it’s done, and they would just have to get it done right. Or we would just have to find another way.
I gently pushed back, reminding him that Tennessee law doesn’t have extraterritorial reach. Not only that, Sandra Day O’Connor and colleagues said the Convention is mandatory doctrine— you can’t go around it. There simply isn’t another way; you can’t just hire a guy in Zurich to do it for you. (Yes, you can request personal, in-hand service under Article 5(b). That doesn’t mean they have to do it.)
But he insisted. Look, I said, this is basic level, 1L ConLaw stuff… the Hague Service Convention is a treaty of the United States. It overrides everything else except the Constitution. The Supremacy Clause? Remember?
And the next question made my jaw drop.
“You got any case law to back that up?”
To back up the proposition that a treaty overrides state law?
Um, no, I don’t have any case law to back that up. I have THE CONSTITUTION OF THE UNITED STATES.
To break it down into digestible chunks…
Article VI, Para. 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,
(Hey, look! The Hague Service Convention is a treaty, made under the authority of the United States!)
shall be the supreme law of the land;
(Any questions so far?)
and the judges in every state shall be bound thereby,
(Sorry, your honor.)
anything in the Constitution or laws of any State to the contrary notwithstanding.
(Uh oh. Roy Moore must just be apoplectic about that one.)
So, no, Bruiser. Tennessee law doesn’t control how a Tennessee action is served on a defendant in Switzerland. The Hague Service Convention does. So in turn, Swiss law does.
And for the record, you’re wrong about your own rules. Tenn. R. Civ. P. 4A mirrors Fed. R. Civ. P. 4(f), and they both specifically defer to the Convention. Even if they didn’t, the Convention still overrides whatever state mandates might enter the picture because the Supremacy Clause says so.
So you, counsel, have a golden opportunity to thwart this guy and his B.S. antics if he brings up such a silly argument:
The Supremacy Clause is a thing. And it’s called that for a reason. Bank on it.
* No, it wasn’t actually Memphis. Names have been changed to protect identities. To be sure, this probably isn’t an accurate analysis of Tennessee rules, but that’s beside the point here. For the record, the image up top is Mickey Rourke as Bruiser Stone in The Rainmaker, which is an absolute goldmine for Ethics CLE programmers, and one hell of a movie in its own right. Bruiser was Matt Damon’s boss until he had to skip town and avoid a whole mess of trouble.
** Nope. Not really Switzerland either. This is illustrative, folks.
*** Yep. Angelina Jolie’s dad.