[Details have been changed to protect the innocent. Some variant of this story happens routinely— at least every couple of months.]
A few weeks ago, I received a Hague Certificate following a request that I’d sent on a client’s behalf to a foreign Central Authority. Essentially, it said, hey, Aaron, thanks for playing– we served your defendant on February 30th, so go get ’em. My client filed it in fairly short order and all seemed to be well.*
Opposing Counsel filed a responsive motion, asking the court to reject the proof provided by the foreign Central Authority, insisting that only an affidavit would do, and that the Hague Certificate that we’d filed was insufficient under the Federal Rules of Civil Procedure. O.C. cited Rule 4(l)(1), which is crystal clear that an affidavit is required to demonstrate proper service.
(l) Proving Service.
(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.
It’s crystal clear if you stop reading there.
My client asked me whether I thought she should respond gently & diplomatically, or with a bit of vitriol.
Oh, vitriol, for sure, said I. Tell opposing counsel that he should READ THE ENTIRE RULE.** Because, oops…
(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.
(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:
(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.
(I put that stuff in bold because, good grief, man, don’t be daft.)
Even if Rule 4(l)(2)(A) didn’t specifically go there (or if state rules mandate a particular form and ignore “Outside the United States” altogether), the text of the Hague Service Convention sets out the requirements anyway and, thanks to that pesky old Supremacy Clause, that’s pretty much it. To suggest otherwise is… well, silly.
Here’s what the Convention says about proof, in Article 6:
The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.
The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.
(Emphasis mine again.) Pretty straightforward, huh?
Defense counsel, when I said to always question the validity of Hague requests, I meant to go deeper on the U.S. side– make sure that the request is valid. Stop making arguments that just make your work look slipshod. Even if you’re in state court, where the rules aren’t so abundantly clear, the Supremacy Clause still punches you in the throat, so just… stop it.
* All of my clients are lawyers.
** A lesson from law school that we often forget: keep reading. This is particularly applicable with regard to Rule 4(m) and service outside the U.S. If the clerk’s office tells you the case is going to be dismissed because you haven’t effected service by the 90-day deadline in 4(m), tell them to read the entire rule.