A routine question from clients across the continent– especially those in my own state*: “Hey, Aaron, the clerk says I have to tell the court who is going to be serving the documents in China or they won’t issue my summons. Could you get me the process server’s name and qualifications so they can appoint him?”
There’s a lot loaded into that, with some compelling responses. The primary response: No… you and I don’t get to know that.
The client will sometimes get a clerk who insists that s/he has the authority to determine who is qualified to serve, and that if I think otherwise, I have to cite an authority compelling his/her issuance of the summons without knowing who’s going to do it. This makes me just a bit more than combative.
For service on defendants in Hague countries, I usually reply thusly (to my client):
- Who serves is dictated by the judicial authorities in the foreign country, by virtue of the Hague Service Convention. If the clerk’s office disagrees, refer them to Article VI, paragraph 2 of the U.S. Constitution and The Honorable Sandra Day O’Connor.
- Even if that weren’t the case, China (or any other civil law jurisdiction, for that matter) doesn’t even have process servers in the sense that we common law practitioners understand them.
- Moreover, no foreign court or government is going to bow to the will of a Missouri court– or any U.S. court. Really. Imagine the shoe on the other foot– can you picture the reaction a U.S. judge would have to some Chinese or Venezuelan or Italian court dictating his/her actions?
- At that, there’s a 99.44% chance that even the Central Authority can’t tell you in advance which random judicial officer is going to be handed this assignment nine months down the road.
- But above all, you want me to cite a case or statute that gives you the authority to issue the summons? How about you cite a statute or case that gives you the authority to deny it?
In most cases, the rule is awfully clear: the clerk shall issue the summons. (Some rules say shall issue, others say must issue… either way, it’s an imperative.)
The best illustration is right here in Kansas City, where (contrary to Rogers & Hammerstein) not quite everything is up to date. Yet Jackson County is not unique across Missouri, and Missouri is not unique nationwide. My criticism isn’t just directed at my own.
See, our court long ago had to assert a bit of control over who could & couldn’t serve process in Jackson County– anybody who’s seen Season 4 of Fargo*** can connect the dots as to why. KC was Vegas before Vegas was Vegas, but without the regulation. On its face, the court’s appointment regime created a sort of guild monopoly, in which a process server had to at least pass a de minimis background check. Even today, if you’re not on the approved list of Jackson County process servers, you can’t serve Jackson County process in Jackson County without being appointed.
Fortunately, neither getting on the list nor getting an ad hoc appointment is very difficult– the barriers to entry are minimal, and the “guild” doesn’t actually meet or hold sway over anything. But the authority to limit who can and who cannot serve ends at the county line.*** Outside the county, our courts really have to defer to the rules in place “over there”, whether that’s in a neighboring county, in a sister state, or in another Hague country.
Put another way, U.S. courts lack the authority to dictate what goes on in other Hague-applicable jurisdictions, as long as the methodology comports with due process. Getting into the tall weeds of appointments does not fit with the requisite procedure.
[All that said, note that U.S. courts do have the authority to commission laypersons, specifically non-lawyers, to sign Hague Request forms. But that goes to who’s asking for service, not who’s actually serving. Those are completely different concepts.]
* Mercifully, I’ve never had to deal with this at the federal level. I’ve had to deal with summons modification refusals (like in bankruptcy court), but I don’t remember having a federal court clerk insist on knowing who is going to serve. The simple reason why? Federal Rule 4 doesn’t care. Any non-party adult can serve a federal action here in the U.S.
*** Rule 4.9 – Special or Private Process Services
1. Any person serving process within Jackson County, Missouri, except those authorized to serve process for the Jackson County Prosecutor’s Office, must establish by affidavit that he or she meets the qualifications provided in section (3)(b) of this rule, as stated below.
Contrast this with the applicable statewide Rule:
54.14. Personal Service Outside the State
(a) By Whom Made. Personal service outside the state shall be made:
(1) By a person authorized by law to serve process in civil actions within the state or territory where such service is made, or by the deputy of a person so authorized;
(2) By a person appointed by the court in which the action is pending.
Yes, yes… emphasis mine.