Alternate title: You don’t serve a Central Authority. Ever.

So stop saying it.

Over the past couple of years, we’ve seen an uptick in the number of plaintiffs’ attorneys who submit FedEx receipts, attesting to delivery of Hague Service Requests to Central Authorities, filing them as proof of service. In most instances, it’s either a lack of other filing options in an ECF system (having to choose the type of pleading with no “Other” option available), or merely a misstatement, meant only to demonstrate counsel’s fulfillment of the plaintiff’s duty of reasonable diligence in getting the job done.

In other instances, though, they assert that service is complete upon delivery to the foreign authority and that’s that. I’ve even heard anecdotally that such a claim was recently stapled to a default motion, but haven’t seen anything to support such a flawed assertion. To be sure, it’s not too far fetched if a litigator equates a Hague Central Authority with a Secretary of State or other statutory agent here in the U.S. Obviously, if a defendant entity fails to maintain a registered agent, the Secretary in Albany or Juneau or Des Moines is the statutory backup. But I’ve always had a problem with that from a due process perspective– after all, what does the Secretary do with it? Even if it were a reasonably calculated means of giving a defendant notice of a suit, it’s a false equivalency to say a Central Authority is an offshore defendant’s statutory agent.

Hague Central Authorities are not agents for service. Full stop. They are the designated government agencies (or courts) responsible for seeing that service is effected according to their own internal laws, but they are not the defendant’s agent. Lawyers and courts must recognize that simple truth.

* Although it clearly doesn’t equate to proof of service, delivery to the Central Authority could arguably constitute a basis to deem a defendant served. Hat tip to the good folks at Steptoe & Johnson for highlighting Saint-Gobain Performance Plastics, issued in the D.C. Circuit four years ago. Lots of nuance in that action– a FSIA case brought to enforce an ICSID arbitral award against Venezuela. There seems to be a circuit split over the question of whether foreign sovereigns shouldn’t be deemed served despite inaction by their Hague Central Authorities, but even where the 5th Circuit goes the opposite way, it still emphasizes that service on non-governmental actors demands a higher degree of notice, and with it, actual proof. The 2d Circuit doesn’t go as far (and I’m not sure whether I disagree with the 2d on this one), holding that, where a company has actual notice, the strict formalism of the Hague Service Convention must yield to reality. If the plaintiff has fulfilled its duty to pursue Hague channels and the defendant knows about the case, let’s stop screwing around and litigate this thing, shall we? (This discussion is fleshed out in St. Gobain’s unsuccessful petition for cert. at 16-18.)