Yet another rant here about advice from purported experts on service of process abroad. The usual tidbits have been making the rounds of late, according to clients who’ve called me.
As with many areas of the law, things usually aren’t as simple as they seem. Sure, I often say to clients that serving in Canada is a piece of cake– a tasty piece of wedding cake– because it really is. If you know what you’re talking about. England and The Netherlands aren’t too far behind in the ease-of-use category. That said, they’re only easy if you know what buttons to push and where those buttons are located.
Elsewhere, landmines litter the landscape. Some examples…
Anybody who says “you won’t meet your deadline” doesn’t know what they’re talking about. (Maybe.)
The most recent one to pop into my inbox… “my process server says it’ll take three or four months to serve my defendant in Switzerland, but I’m in federal court and I only have 90 days!”
For starters, no. Just… no. It may take three or four months from the date a request is submitted to the date proof reaches your desk. But service itself happens somewhere in the middle– the Swiss don’t just make great watches. They’re pretty good at getting service effected in a timely manner, too. In fact, the defendant’s answer deadline will likely pass before proof comes back.
Even at that, the 90-day deadline from Rule 4(m) isn’t the great bogeyman your process server would have you believe. It only applies to service on U.S. defendants, while it merely helps courts refine the parameters of a reasonable diligence standard for serving abroad. In many countries, service takes so long that the judge just has to deal with it.
Don’t get me started on process servers weighing in– if they can’t put your mind at ease on this specific issue, how accurate will they be when they start encroaching on legal analysis?
The tough part about services deadlines is that they’re so fact-specific. And it takes a bit of analysis by somebody who knows what they’re talking about to determine how (or whether) they apply.
Anybody who says “just do it through the Hague Convention” doesn’t know what they’re talking about.
For starters, any piece of advice that begins with “just…” is automatically suspect. Not always inaccurate, but worth an extra bit of scrutiny. Rather like “no offense, but…” is usually followed by something offensive.
There is no “just” doing anything about service abroad– especially where Hague doctrine is involved. Each country has its own complexities and requirements, if indeed the “Hague Convention” applies in the first place (hint: it often doesn’t). But where it applies, litigators have no choice but to adhere to Hague doctrine.
And at that, there’s no such thing as “THE” Hague Convention. There are over three dozen of them, ranging from the cross-border sale of goods to child abduction to the Protection of Cultural Property in the Event of Armed Conflict. Seriously.
Service of process is governed by the aptly-named Hague Service Convention. Somebody who doesn’t get the distinction… doesn’t know what they’re talking about.
Anybody who says “just hire a process server in (Mexico/Japan/China…)” doesn’t know what they’re talking about.
There are two basic types of legal systems in the world– common law systems, in countries that either have or once had the Union Jack flying over them, or civil law systems everywhere else. It’s a conundrum. Process servers are a creature of the common law, and they don’t exist in the civil law . At least, not in the way we common law practitioners think of them. Instead (and I risk overgeneralizing here), process is served in civil law jurisdictions by judicial officers who act under the authority of the court. By and large, they’re trained lawyers who enjoy a statutory monopoly on the authority to serve, in exchange for a limit on their practice area; roughly translated, they’re called bailiffs. They are not process servers, and even if they were, it may not be legal to hire one directly, given the destination country’s position on Article 10(b).
Anybody who says otherwise… doesn’t know what they’re talking about.
Anybody who says “just mail it” doesn’t know what they’re talking about.
This one frustrates me to no end. For starters, even where it’s valid, serving by mail is a still a bad idea. But in much of the world, it’s expressly prohibited by foreign countries’ objections to Article 10(a). A much-misinterpreted case of late is Water Splash v. Menon, which resolved a major circuit split and rejected the idea that 10(a) is self-negating because of a drafting error. In holding that that service by mail is legally valid under 10(a), the decision led many to erroneously believe that service by mail is legally valid everywhere the Convention applies. It simply isn’t– it’s only valid where the foreign country does not object.
At that, forum rules still dictate how service must be effected by mail, so just dropping the summons & complaint in an envelope and shooting them off to the defendant probably isn’t valid. In federal court, see Rule 4(f)(2)(C)(ii). It has to originate from the clerk, and it has to require a signed receipt.
Those folks telling you to “just mail it” are not only advocating for the cheap/lazy option– they also don’t know what they’re talking about.
Be diligent. Read up. And don’t just accept flippant suggestions from someone who doesn’t deal with this sort of thing on a regular basis. Get in touch with someone who knows what they’re talking about.