Shortly after I hung out my shingle, I posted that defense counsel should always question the validity of Hague Service. Why?

• Well, the Request may have been signed by a layperson who isn’t authorized to sign Hague Requests.
• It may have been served by a private agent in a country that objects to private agent service.
• It may have been served by mail without observing the venue court’s rules on mailing.

Conversely, I’ve also posted that we know what we’re doing over here. Yes, defense counsel, I said you should question the validity of Hague Service Requests… but don’t be silly about it.  If a complete analysis tells you it’s valid, file an appearance and let it go.  Don’t make questionable arguments that have no merit. The simple fact is, your client has notice of the pendency of the claim and your client has an opportunity to be heard. That means the plaintiff’s Mullane obligations have been fulfilled.

Lately, lots of defense attorneys have grasped at straws to try to make cases go away– cases that we’ve had served pursuant to both Article 5 and Article 10(b) of the Hague Service Convention.

For Article 5 situations

… the argument usually goes something like this: “this wasn’t served according to German law so the case should be dismissed.” The thing is, a German court issued a Hague Certificate saying it was served according to German law, and if the foreign government says it’s served… it’s served.  Game over, kids.  A U.S. court isn’t competent to go behind the Certificate to reach a conclusion of German law contrary to a conclusion by the German judiciary. For crying out loud– Kentucky can’t say Tennessee gets Tennessee law wrong… how can a U.S. court say Germany gets German law wrong?! *

For Article 10(b) serves

…the defense sometimes tries to say the only valid way to serve is through a Central Authority. While that’s correct in China or Mexico or Switzerland, it’s patently false in Ireland, Ontario, Bermuda, etc. And the proof documentation we provide for those 10(b) jurisdictions lays out the doctrine under which the defendant is served. That doctrine is usually where the defense directs its fire.

• You didn’t serve correctly under FRCP 4(f)(1). [Right. We didn’t. But we did serve correctly under 4(f)(2)(A): “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.”]
• You didn’t serve an officer or director like it says in Ontario Rule 16.02(1)(c). [Right. We didn’t. We did serve the receptionist who wouldn’t bother to pick up the phone and call somebody– and who was clearly in control of the place. Just like 16.02(1)(c) says.]
• You didn’t translate the documents into Flemish. [Right. We didn’t. And we don’t have to. Your client is clearly competent in English, and the Belgians don’t require translation. Nor do the Dutch, the Danes,** the francophone Canadian province of Québec…]

Historically, incorrect arguments have been exceedingly rare, but for some reason lately, defense attorneys have ramped up their attacks on what we do. That’s bothersome but understandable– in a hyper-agitated world, combative litigators try everything they can to protect their clients. But if their incorrect arguments aren’t called out… big problems.

More bothersome is the plaintiff’s lawyer who won’t fight back. Who won’t respond to B.S. arguments by calling them B.S. arguments. Y’all, you’ve gotta cowboy up on this stuff. You have to make the argument. Bring a little Rip Wheeler to the party (my wife says to cowgirl up and bring some Beth Dutton to the party, and she’s right).

Don’t just accept what the more aggressive lawyer says. I can arm you with the logic you need, but you have to make the fight.

* Interestingly, a German court recently spit back a series of Hague requests that I’d sent for service on Bayer, the parent company and co-defendant of Monsanto, which is headquartered in my home state of Missouri. The German court said that, because Missouri is a split recovery state, the cases being heard in a different (non-split recovery!) state entirely might mean damages go to the state instead of the plaintiff. That, they said, yanked the cases out of the “civil” realm to which the Hague Service Convention applies. A German court reaching a completely incorrect conclusion of U.S. law.

** Denmark doesn’t require translation. The Danes do require their serving officers to tell defendants they can reject untranslated docs. A bit odd compared to the rest of the continent.