An axiom of life was posed to me one day toward the end of my 2L year:
Lawyers are the most helpless race of people on the planet.
This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience in military and civilian courts. “Seriously,” he said. “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”
After I started practicing, I concluded that he was right– at least, to a point. But it’s not that lawyers are incapable of dealing with picayune matters. We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice. Part of the difficulty in dealing with the seemingly small stuff is this: we have so much voluminous reading to do that we forget one of the Cardinal Rules of law school: keep reading.
In the first post of this series, I bemoaned the tendency of lawyers and judges to see the 90-day service deadline in Rule 4(m) and just stop reading. They don’t get to the last sentence of 4(m), which specifically abrogates the deadline for service on overseas defendants. Here, a less frequent issue is the title of Rule 4(f), which I’ve lived in for going on nine years.
(f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY.
If the defendant is an entity, counsel can’t just stop reading there. He absolutely has to continue on to 4(h)(2), which applies 4(f) to entities, for the most part.
(h) SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).
That last part (“except personal delivery”) is the problem. It occasionally pops up when defense counsel tries to argue that my English solicitor can’t send his favorite process server to drop my summons & complaint on a desk at a defendant’s registered office. Likewise the rest of the UK and its territories, Ireland, Canada, Hong Kong…
“No,” defense counsel says, “you can’t do that. Rule 4(h)(2) precludes personal service.”
Sorry, my mistaken colleague. That’s not what 4(h)(2) precludes. Rule 4(h)(2) precludes the use of 4(f)(2)(C)(i) to justify personal service, and we don’t get there via that particular rule. We get there via 4(f)(1) in conjunction with Article 5 of the Hague Service Convention, or via 4(f)(2)(A) in tandem with Article 10(b). Those portions of 4(f) are clearly not taken off the table by 4(h)(2).
(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:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(Emphasis mine.) Personal service is completely valid if it’s undertaken by competent persons in the foreign country– either at the direction of a Hague Central Authority or simply pursuant to local law (if the destination country doesn’t object to 10(b), that is).