O’Connor, J.  Author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

A primer for defense counsel here– but a cautionary tale for plaintiffs’ lawyers as well.  [With a focus on federal practice, particularly Rule 4… state rules vary, but not by much.]

Hey, Aaron, how do you quash Hague service?

This one was posed to me recently by a colleague.  His understanding was that, just like here in the U.S., if your offshore client receives a summons & complaint from a U.S. court, they have to show up and defend.  And he was desperate to find a way to make the thing go away– at least for a while.

Well, don’t be so quick to think it’s all good, I responded.  There are lots of procedural requirements that plaintiffs’ counsel isn’t always aware of– prompting me to post That Hague Service Request isn’t as solid as you think some three years ago.

In all U.S. cases where it applies, the strictures of the Hague Service Convention must be adhered to.  Period.  There’s no deviation from that, despite a whole bunch of case law that says otherwise.  Says who?  Says that nice lady up above.  ^^^

I also urge defense counsel to Always Question the Validity of Hague Service Requests.  Just because your client knows about the suit doesn’t mean it’s been properly noticed, so you might be able to end the matter before it even really begins.

After we chatted for a few minutes, I concluded that my colleague’s client had been properly served– most notably because the signature on the Hague Request was that of an attorney colleague who knows how to do things the right way, and it was served by a judicial official in the foreign country.  Telling him that he should just answer the complaint was an easy conclusion.  But it got me thinking: I haven’t really put out a cohesive strategy for defense counsel on this issue, so here are just a few examples of attempted service that doesn’t cut the mustard, and some suggestions for attack…

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Using Article 10 methods in countries that object to Article 10
  • Best example: plaintiff serves a Swiss (or Mexican or Chinese, et cetera…) defendant by FedEx, because “well, the Convention says mail is okay.”

Yes, the Convention does say, essentially, that service by postal channels is acceptable, but that is only if the State of destination does not object.  The fact that the plaintiff used FedEx rather than the U.S. Postal Service is no problem, but Switzerland objects to Article 10, so mail/courier service if off the table.  (Even if it weren’t, I contend that it’s a bad idea except in the rarest of cases.)

  • Another example: plaintiff asks her cousin to serve papers on a defendant in Mexico, because Rule 4(c)(2) says any non-party adult can serve.

Not so fast– Mexico objects to Article 10, so alternative methods are entirely inappropriate.

In countries that object to Article 10, a plaintiff has no choice but to proceed under Article 5, and that necessitates a Hague Service Request and the involvement of a Central Authority.

Coolcaesar via Wikimedia Commons.
Article 10(a) mail service not in compliance with forum rules

Much hay was made a couple of years ago when the Supreme Court resolved a circuit split large enough to drive a truck through. In Water Splash v. Menon, the Court held unanimously that mail service is permissible under Article 10(a) of the Hague Service Convention. Huzzah, everybody thought.  Now we can mail anything, any time, anywhere.

But that permissibility only matters where (1) again, the destination country doesn’t object, and (2) mail service is valid in the forum court to begin with— and even then, it must be done according to that forum’s rules.

Rule 4(f)(2)(C)(ii) authorizes mail service on defendant’s located outside judicial districts of the United States.  Easy peasy, lemon squeezy, right?

Well, no– not easy peasy.  The mailing has to originate from the Clerk of Court– and it must be sent by a means requiring a signed receipt (we’ll get to that issue in a minute).

Now, it might be argued that 4(f)(1) is the Hague Service Convention rule, so that’s where the authorization for mail service arises– and 4(f)(1) doesn’t require the Clerk or a signed receipt.  Aha, but… the Convention doesn’t expressly authorize mail service.  It permits it (go back to Water Splash).  The Convention merely steps out of the way, so as not to interfere with mail service.  Consequently, mail service has to fall under 4(f)(2)(C)(ii), thus erecting some hoops for the plaintiff to jump through.

Article 10(a) mail service that produces no factual proof

Back to my contention that mail service is a bad idea except in the rarest of cases.  The biggest reason?  Although it might be legally sound, can they prove it up?

Again, 4(f)(2)(C)(ii) requires a signed receipt, so defense counsel can hold fast on the fact question– if the plaintiff doesn’t have a receipt, they can’t prove that service was effected.  Look a little deeper– it may not be valid.

Article 10(b) service by someone not designated as a competent person

Article 10(b) allows service of U.S. process via “judicial officers, officials or other competent persons of the State of destination.”  Very often, this is also erroneously conflated with 4(c)(2), so plaintiffs will just (1) hire a guy in Paris or Amsterdam or London, (2) send the papers, and (3) the guy serves the defendant.

But forum court rules don’t determine competency under Article 10(b)– the State of Destination does.  In France and the Netherlands, bailiffs have a statutory monopoly on service of process, so not just anybody can serve.  And in England, private process servers must be directed by a solicitor.

If “some guy” walks up to your overseas defendant and hands him papers, don’t just presume that U.S. methods control.  Look a little deeper– it may not be valid.

Article 5 service predicated on a faulty request

This one is my white whale– and it’s yet another misconstruction of 4(c)(2) that just grates on me.

The U.S. designation of forwarding authorities under Article 5(3)– that is, who is empowered to sign Hague Service Requests– is limited to “any court official, any attorney, or any other person or entity authorized by the rules of the court.”  There are a host of process servers out there who argue that any non-party adult can serve under 4(c)(2), so any non-party adult can sign a Hague form.  That’s a massive leap in logic.

Joe Bob is not a lawyer.

I’ll say it again– forum court rules don’t determine who is competent to serve in foreign countries, and the act of signing a Hague request is not the same as the act of serving.  Absent a commission by the forum court, non-lawyers are not granted forwarding authority status under Rule 4.

So look a little deeper– it may not be valid.

Any service procedure not initiated in a timely manner

Rule 4(m) mandates that a defendant be served within 90 days of filing, or the court must dismiss that defendant.  But keep reading… it also specifically abrogates that deadline when the defendant is abroad.  The conclusion many attorneys reach from this is that it doesn’t matter how long they take to get the job done.  They’re half right.

No, it doesn’t matter how long it takes to get the defendant served, but this presumes that the plaintiff is not dilatory in starting Hague procedures.  Instead of unlimited time to serve, plaintiffs are under a reasonable diligence standard in cases involving service abroad.  This is generally taken to mean that, as long as a service request is filed with a foreign authority by Day 90, there’s no problem.  From that filing, it’s up to a foreign sovereign to effect service, so plaintiff’s obligation is fulfilled.

But what if they drag their feet?  What if they only call someone like me for help on Day 91?

There are lots of variables in this particular equation– most notably, if there are requests for waiver or negotiations with opposing counsel– that indicate diligence despite a Hague request being filed abroad after the 90th day.  Still, if the plaintiff does literally nothing to effect service within three months, a 4(m) dismissal (not a quash, but a dismissal) is in the offing.

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A couple of closing thoughts

What if you do get service quashed–what’s the ultimate result?

Well, unless the plaintiff has completely exhausted all allowable time, they can always just tee it up again.  And remember– under federal rules, at least, all defendants (yes, ALL defendants*) are obliged to waive service, or they risk (1) losing a substantial fee shifting motion and (2) thoroughly annoying the judge.  The best course of action might be to just waive service arguments and fight it out on the merits– saving some grace with a judge who is really irritated by procedural antics.

But if the statute of limitation has run, or the case has already been dismissed once (sans prejudice), savvy defense counsel may be able to make the entire lawsuit vanish.

Like I said, a cautionary tale for plaintiffs (who should outsource stuff like this anyway!).

 


* See Rule 4(d)(1):  “An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.”  The reference to (f) necessarily applies the obligation to defendants located abroad.  Fee shifting is mandatory only as to U.S.-located defendants who refuse to waive.