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Aurélien Lemasson-Théobald, Unsplash

The U.S. Department of State and Global Affairs Canada each designate “Forwarding Authorities” who are legally competent to sign Requests pursuant to the Hague Service Convention. In Canada, the designation is pretty succinct, setting out a specific list, including various government officials, judicial officers, and “Members of the law societies of all provinces and territories”. Put another way… certain public servants and lawyers (including huissiers de justice in Québec).

In the U.S., things appear to be a bit more loosey-goosey:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. 

Any court official. So the judge or clerk of court can sign these things. Got it– easy to see.

Any attorney. Plaintiffs’ counsel, defense counsel bringing in a third-party defendant, a group of attorneys in Kansas City who do nothing but Hague Service (hint, hint), or really, anybody among us crazy enough to pass a bar exam. Check.

But what of “any other person or entity authorized by the rules of the court“? There’s where we get into problems. Why? Because a whole bunch of process servers look to FRCP 4(c)(2) and somehow see an authorization to sign Hague Requests. That takes a massive leap in logic and willful disregard for the distinction between what is authorized and what is permitted.  Process servers are neither in this regard, because Rule 4 says nothing about the Hague mechanism except to say an overseas defendant may be served in accordance with the treaty. Even that drafting is incomplete, because if the Hague Service Convention applies, it’s mandatory doctrine by virtue of the Supremacy Clause. The FRCP are irrelevant to the question.

But 4(c)(2) says precisely nothing about the Convention or service abroad. Here it is verbatim:

By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

Hmmm. That’s not even authorization to serve domestically. It’s permission (may serve). And why is that permission there? Because service of federal process was once within the exclusive purview of the United States Marshals, and an Advisory Committee thought that should be opened up to folks outside federal law enforcement. It still doesn’t get to who is authorized to sign a Hague Request– 4(c)(2) just says who may serve.*

Who may serve in a foreign country is not determined by the FRCP. It’s determined by the foreign government in its municipal law, modified by its declarations to the Convention. Our rules go out the window. Looking again to the U.S. designation of Forwarding Authorities, it’s necessary to go elsewhere to find authorization. For this specific function, the FCRP are silent, but the court has inherent authority to appoint specific persons to act on its behalf.

Now, to be sure, many non-law firms (process servers) do it the right way– they ask for a commission from the forum court, and only sign Requests under that authorization. Others just cut to the chase and hire a lawyer (or lawyers) to be on staff– that’s how I got into this business in the first place. Both approaches satisfy the U.S. designation. Nobody involved in that procedure, including the lawyers, are actually authorized to serve the thing in the foreign country.

But the non-lawyers who sign them without specific authorization from the forum court? Nope. Not valid, so don’t take their word for it that “sure, it’s all good, we’ve been doing this for years.”

That’s only because no defendant has ever taken it up on appeal. I’m pretty confident you don’t want to be on the receiving end of that benchslap.

* The distinction between “authorized” and “permitted” is fleshed out in the Syllabus of Water Splash v. Menon (2017): “The fact that Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under otherwise-applicable law.”

A note to defense counsel: always question the validity of Hague Service Requests. So your offshore client was ostensibly served by judicial officials in its/his/her home country? Validity of service under that country’s laws is not the end of the analysis. If it’s not a valid Request to begin with, think fruit of the poisonous tree from Crim Pro.