“The defendant works at…”
Hmm. Do you happen to have a home address?
“No, just his office.”
Let’s hope he’s there. And that we can get in the door…
That exchange happens between lawyers and process servers daily. And it’s a challenge, because defendants can’t be served by substitution at their place of business.* Under most courts’ rules, they can be “sub-served” at home, usually by delivery of the documents to “someone of suitable age and discretion who resides there” or some variation on that theme.** In other words, even if defendant Fred isn’t home, you can still effectively serve him by handing the summons & complaint to Wilma. (Pebbles is just a toddler, and doesn’t really talk. Besides, she’s not even tall enough to answer the door yet.)
Likewise defendant Barney. He’s not home, but if Betty answers the door, you’re on solid ground. (Avoid Bam-Bam. That kid’s dangerous.)
But you can’t get Fred or Barney by handing the docs to grumpy Mr. Slate down at the gravel pit. If they’re having lunch down at the Water Buffalo Lodge when your stone tablet server rolls up, you’re out of luck– unless the server knows the secret handshake and tags them at the Lodge.
I’ll stop with the Flintstones analogy, but notice something… I haven’t once mentioned the Hague Service Convention, which is the centerpiece of this blog and the primary reason for its existence. Why? Because the challenge is the same wherever you go, and it’s even more difficult to tag someone at the office in the WFH/split-time era.
The story is critical going across borders, because the conversation up above happens more frequently between me and my clients than you can imagine. It’s even more important to have a home address for defendants offshore, for several reasons:
- Officials in civil law jurisdictions are more sensitive to defendants’ privacy than are common law process servers. As such, they prefer to serve at a residential address if for no other reason than to save Fred & Barney some embarrassment.
- Just like here in the U.S. and Canada, if the defendant isn’t actually at the workplace when the serving officer shows up, that officer isn’t going to just sit in the lobby and wait. Even your local process server won’t do that without an extraordinary run-up in costs.
- You don’t get to dictate to foreign authorities how & when to serve. You can only indicate where the defendant can be found. In the U.S. and Canada, we can direct our process servers to go back and try again or to attempt a different address, but we don’t have that luxury “over there”. Simply put, you’re not going to tell a Swiss bailiff or Chinese court official how to execute his duties. It just doesn’t work that way.***
- The “someone of suitable age and discretion” requirement may not even pop up. In some jurisdictions, the docs can just be slid into the mail slot, or the officer will slap a Post-It note on the door telling the defendant to come and get his documents at the Post Office or local police station!
It’s a harsh reality, but this is a problem both at home and abroad. Hague rules don’t mitigate the problem– if anything, the problem is exacerbated. If you can get a home address, do it. It may not be the end of the world if you can’t, but a home always presents better odds.
* Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1985): “Rule 4 has generally been construed to mean that service at a defendant’s place of employment is insufficient.” Don’t read into that holding that you can’t serve a guy at work if that’s where you hand him the docs personally. That said, New York CPLR §308(2) authorizes sub-service at a workplace, though there’s a still a huge question in my mind about whether that’s constitutionally valid.
** Fed. R. Civ. P. 4(e)(2)(B), in case you’re curious.
*** It’s truly baffling– clients routinely say to me (with a straight face, no less!) to “just tell the Chinese to (do XYZ…).” I even had opposing counsel make that argument in a hearing once. The judge audibly giggled. It just doesn’t work that way, folks. If neither Biden nor Trump can simply tell China what to do, what makes you thing I can?
Author’s Note: This post was almost about The Munsters (they lived at 1313 Mockingbird Lane, Herman worked at the funeral parlor…), but Fred Flintstone is objectively funnier than Herman Munster.
Then again…
