Every once in a while, when a colleague is stymied by limitations to serving an offshore defendant, the thought comes to mind that “hey, I might try to get leave of court to serve the defendant’s U.S. counsel.” It’s a great idea, and if the judge signs off on it, I don’t see how it could be unreasonable under the Mullane standard. Getting to that point, though, is often done in an entirely wrong way: using FRCP Rule 4(f)(3) as a basis for the motion.
Why is that entirely wrong? Because 4(f)(3) doesn’t apply if service doesn’t take place abroad.
(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:
(3) by other means not prohibited by international agreement, as the court orders.
Instead, the basis for granting leave to serve a defendant via U.S. counsel comes from either 4(e)(2)(C), in the case of individuals, or 4(h)(1)(B) in the case of entities. Both say essentially the same thing…
in a judicial district of the United States:
… by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.
A whole bunch of very flawed case law uses 4(f)(3) to order service on a defendant’s lawyer here at home, and it makes me scratch my head every time.
Sure, 4(f)(3) is a great basis for leave to serve electronically, as long as it doesn’t conflict with the destination country’s declarations to the Hague Service Convention.* But it simply makes no sense as a basis for serving U.S. counsel. It literally defies logic and the plain language of the rule.
In a judicial district of the United States… or not within any judicial district of the United States. The geographic distinction goes to where service takes place, not the defendant’s citizenship or domicile.
* Ted Folkman has extensive commentary on the highly flawed Gurung decision and its just-as-flawed progeny over at Letters Blogatory. I won’t belabor that point here, except to say that it’s a very very very very very bad decision.