One immutable truth looms over everything I do: if you can’t tell me where your defendant is, I can’t get him served for you.*
I couldn’t be more serious– “where?” is the most important question I ever ask a client. There are precisely four variations on the answers.
- We know where he is. (And that knowledge is ultimately proven correct.)
- We know where he is. (But the information is ultimately proven wrong— or changes by the time a foreign authority gets around to serving.)
- We think he’s in (X country), but aren’t sure.
- We have no idea. We just know he’s out of the country.
Each of those answers presents different challenges and opportunities. Let’s take a look at each in turn, noting that none of them have to mean the end of the world.
(1) We know where he is. (ultimately proven correct)
A solid address, authenticated by a corporate registry** or some other source, and hopefully validated by Google Maps, is the best way to ensure that service is effected. It may not be incredibly quick, depending on the country, but a confirmed street address is absolutely critical to valid service, whether under the Hague Service Convention or other non-treaty methods. This typifies the vast majority of the cases I handle, usually because my clients (all lawyers) have done their homework and pinpointed the defendant’s location.
Assuming the paperwork is in order and the serving official (or “other competent person”) is doing his job properly, it’s a slam dunk just about every time.
This is the best case scenario, but the challenge often lies in cost and time spent waiting for proof to come back.
(2) We know where he is. (ultimately proven wrong/changes)
This is actually the worst case scenario, because if the information turns out to be wrong, that cost and time are somewhat spent for naught. A litigant or counsel spends thousands of dollars and many months waiting, just to learn from the foreign Central Authority that “the defendant has moved and no further information is available.” ** If credible sources tell you at the beginning that the defendant is domiciled at a particular address, there’s really little choice but to try getting to him the regular way. It’s incredibly frustrating.
But all is not necessarily lost. This situation actually opens up the same opportunity as #3 and #4… read on.
(3) We think he’s in (X country), but aren’t sure.
Here, we’ll have to get creative. The most creativity I’ve ever seen came out of the Southern District of New York two years ago, when a plaintiff was ordered (on its own motion) to serve a foreign defendant via Twitter. No joke.
As long as the Hague Service Convention doesn’t apply, there is no prohibition to electronic service under FRCP 4(f)(3). By its own terms, right up front in Article 1, the Convention is inapplicable “where the address of the person to be served with the document is not known.”
Focus on the word “known” for a moment.
- If your client’s best friend’s sister heard from this guy who’s going with a girl who saw the defendant at a hotel in Zurich, do you know that he lives at that hotel? Hardly.
- If you discover that the defendant lived in a Latin Quarter sixth-floor walk-up while studying at the Sorbonne in 2007… ahem, sorry. That doesn’t mean you know his address now.
- If the defendant’s business card lists an address in London that turns out to be a Mail Boxes Etc. outlet, forget it. No process server on that sceptred isle is going to get him.
- Even fairly reliable intelligence can tell you that your Italian defendant goes to Ristorante Terme di Diocleziano at 9pm every Thursday for dinner,*** but that doesn’t clear the hurdle.
Sure, in some places such intel might be enough to serve him personally via Article 10(b) within a matter of hours [I’m looking at you, Canada]. But for a standard Article 5 Request, significantly more certainty is critical– especially if the defendant is itinerant. Trying to go through a foreign government agency without an actual address… fuggedaboutit. It ain’t gonna happen.
(4) We have no idea. We just know he’s out of the country.
Good. Hopefully the fellow is gallivanting across Europe in a used VW microbus, regularly posting selfies from famous landmarks on Instabook or Twitlink**** or some other social media platform. As with the S.D.N.Y. case, just get leave of court to serve him via Instabook or Twitlink. This is the “how to not have to hire Aaron” method.
* I use “him” instead of “him/her/it” for simplicity’s sake. Using “him/her/it” frequently would annoy you, I promise.
** I heartily recommend registry searches where an entity defendant does not publicize its domicile address, especially in the Far East. Sadly, even though we may have a registered address, certain countries’ procedures take so long that a defendant really does move between submission and the attempt at service.
*** Note my glowing review of that place.
**** I made those names up.