Over doing the do-it-yourself philosophy. Lorax, via Wikimedia Commons.

A couple of years ago, an interesting thought dawned on me.  Frankly, it’s not very novel, so I couldn’t really call it an epiphany, but it’s an awfully important analysis to any trial lawyer who works on contingency.

[TL;DR… if you do the work yourself, it’s just one more part of your 33%.*  If you outsource the work necessary to serve offshore defendants, it’s an expense calculated outside the 33%.  Don’t even get me started on the time and frustration you’ll save yourself.]

Take a look at a 2L-style hypo.  A few facts:

  • Personal injury case against an automobile manufacturer.
  • Not catastrophic, but to make the math easy, let’s say the case is worth about $250,000 actual and another $100,000 in punitives.
  • Assume $50,000 in various expenses, like medical records and court reporters and expert witnesses and, oh yeah, process servers who go out and tag your U.S. defendants.
  • But let’s also say for illustration that the carmaker is German, and the defective part was made by a supplier in China.
  • You have a twenty-page complaint to serve along with the summons.
  • Just for funsies– and again, easy math– let’s say you bill $500/hour when you’re doing that sort of thing and not doing contingency work.

How does the money shake out on a $350,000 settlement?

Well first, you have to determine how you get the action served.  You run a Google search on how to serve process in Germany.  In all likelihood, you’ll come across this post to give you a quick rundown.  You then run a comparable search on on how to serve process in China.  You hit this post, and then maybe this one, and perhaps even this one.  In reading those, you conclude that you’ll need to fill out a USM-94 form, and when you read this post on how to do it, you realize that maybe this is going to take a while.

You’ve got three ways to go:

  1. Retain us to handle the whole thing (I’m not trying to get sales-pitchy here– really),
  2. Use the Hague Envoy document automation platform at USM94.com, or
  3. Handle it all yourself, including figuring out what options may or may not be available.

So now, the call of the question: where do those options fall in the financial calculation?

Well, if you’re a personal injury lawyer and you do it all yourself, it’s part of your contingency agreementYou recover no costs other than translation and shipping.  All the time spent researching the ins & outs of how to do things properly… it’s part of your standard one-third of the award.*  So if you spend several hours looking things up, that’s a bunch of fees you can’t deduct from the collected amount.

But when you outsource your efforts to serve abroad, it’s an expense, just like medical records and court reporters and expert witnesses.

If you win, it’s money going back into your pocket.  And you don’t have to spend several hours researching a procedure you won’t touch again for a long time.


* Of course, the percentage varies by jurisdiction and common practice according to locality.

Széchenyi Thermal Bath, Budapest. Victor Malyushev via Unsplash.

Sorry, folks.  Set aside thoughts of goulash, the Gabor Sisters, and nice chess games at a thermal bath… you’re litigating here, not sightseeing.  But with a Hungarian defendant, the procedure before you really isn’t overly challenging.  Service in Hungary is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to get it done:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Hungary:

Article 5 Service

  • Translate the documents. It’s required by Hungary’s declaration to Article 5(3), period.  (It’s not about the defendant’s competence in English.)
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case Ministry of Justice in Budapest.
  • Sit tight. It may take a while—several months from submission to return of proof.

Article 10 alternative methods

  • They simply aren’t available, because Hungary objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Hungary’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.  [That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.]

Another FAQ entry here, with a very simple response…

Since we’re serving this foreign defendant under Hague rules, do they get extra time to answer?

Nope.  Nothing in the Hague Service Convention gives a defendant anything.  The deadline is the deadline is the deadline.  Why?  Because the Convention only goes to HOW process is served– it has literally zero effect on the management of the docket– other than perhaps stretching out the service procedure.

The answer deadline is determined entirely by forum court rules.

[Note that this post comes in under 100 words.  It doesn’t need any more.]

Yogendra Singh via Unsplash.

Author’s Note: This is far from a scholarly criticism– it is a nuts & bolts look at how this thing should go down.  Preface:

Frankly, I think electronic service is the only way to get these scofflaws served.

A cause for hope came out of S.D.N.Y. recently, and I’ve been ruminating about it for a couple of weeks, because it reached a kinda-sorta right result, but for the wrong reason, and it upended another kinda-sorta right result based the wrong reason.  The succession of kinda-sortas and wrong reasons makes me look like that guy up above.  He’s just younger and thinner.

The hope?  That S.D.N.Y. would finally kill Gurung v. Malhotra and its demon spawn by recognizing the exclusive nature of the Hague Service Convention, as clearly held in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

Reuters dropped this story into my newsfeed late last month, and I started reading with incredible (ultimately dashed) optimism.  The case really hit the bigtime this week on both Letters Blogatory, published by my friend, Ted Folkman (whose White Whale is Gurung), and the Transnational Litigation Blog— a fantastic, comprehensive blog by a team of top international law scholars.*

We give you Smart Study Co., Ltd. v. Acuteye-US et al., 1:21-cv-05860.  Folkman synopsizes quite succinctly:

“The case involved a claim to trademark and copyright infringement concerning the Baby Shark song, which no doubt will be running through your head for hours now that you have read the words ‘Baby Shark.’ The defendants were Chinese companies selling alleged knockoffs on the internet. The plaintiff sought and received a temporary restraining order and a preliminary injunction, and received leave to serve process by email.”

Those Chinese companies couldn’t get the song out of their heads either (go ahead, click the link– you know you want to), and they sought vengeful profit by producing all manner of Baby Shark-related memorabilia… which they have no legal right to do.  It’s an all-too common fact pattern in today’s Amazon-dominated economy: a Chinese manufacturer blatantly sells an infringing good via Amazon Marketplace, with no discernible paper trail that would allow a plaintiff to press an ordinary IP suit.  Plaintiffs sue anyway, and they ask the court for an order to serve electronically.  Because of the horrible, terrible, no good Gurung decision, and because judges are naturally (and justifiably) impatient, orders for electronic service under Rule 4(f)(3) are routinely and erroneously granted.  Text of that rule:

(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:

(3) by other means not prohibited by international agreement, as the court orders.

(This applies to entities, too, by virtue of 4(h)(2).)

Remember– the ultimate goal is not damages (good luck enforcing that victory in the PRC!), but to keep the infringing goods out of the U.S. market.  A District Court default can smooth the road in a §337 proceeding, which is necessary to stop such goods at the port of entry. I see dozens of these cases on the docket every year, and it astounds me that courts and plaintiffs’ counsel still don’t have a solid handle on the best, proper way to serve the defendants, and quickly.  So here we go, with a real-world criticism of what’s happened lately in the Smart Study case.  (In short, the court denied a default motion,  inter alia, but with similarly tenuous reasoning to the initial order.)

It’s the summer of 2021, and along comes plaintiff Smart Study Co., who succeeds in getting a 4(f)(3) order for electronic service (based in large part on Sulzer Mixpac, a demon spawn of Gurung), and serves the Chinese vendors electronically.  Now in the summer of 2022, a pair of the defendants actually appear (gasp!) in opposition to Smart Study’s default motion, arguing in part what I’ve been saying for years:

ELECTRONIC SERVICE VIOLATES THE HAGUE SERVICE CONVENTION.

Judge Woods says “whoa, wait a minute…” and denies Smart Study’s default motion, determining upon further consideration that the 4(f)(3) order was in error– including a withering criticism of Sulzer Mixpac.

Huzzah for Judge Woods, seemingly a rarity in the Southern District, where 4(f)(3) orders are doled out like candy on Halloween… but whoa, wait a minute.  Let’s dig deeper.  The original 4(f)(3) order was correct, but based on the wrong reasoning— or incorrect in light of what was originally argued–  so perhaps the denial of default was correct, and the original order just needs a tweak.  Everybody knows these scofflaw vendors are purposefully anonymous, and frankly, I think electronic service is the only way to get them served.  But getting to that point should be more meticulous than what the plaintiff did here.

The big, massive, gaping hole in everybody’s reasoning is this:  the methods articulated in Hague Service Convention are EXCLUSIVE, and because it’s a treaty, it’s the Supreme Law of the Land (I read that somewhere, I’m certain).  Trial judges’ and plaintiffs’ justifiable impatience notwithstanding, email is not permitted by the Hague Service Convention, so it’s OUT, arguably where the destination state doesn’t oppose Article 10(a), but unquestionably where that state has objected.

O’Connor, J.  Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 710 (1988).

Don’t take my word for it.  Take the word of this nice lady from Arizona–>

 “Those who eschew its procedures risk discovering that the forum’s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service.”  Schlunk, at 706.  (Emphasis mine, of course.)

And Justice Brennan, concurring:

“In response to this and other concerns, the Convention prescribes the exclusive means for service of process emanating from one contracting nation and culminating in another.”  At 710.  (Yes, yes, emphasis mine again.)

 

But– and it’s a critically important but– if the Hague Service Convention doesn’t apply, there’s no violation of it. See Article 1:

This Convention shall not apply where the address of the person to be served with the document is not known.

Smart Study was on the right track– the defendants’ evasion and purposeful anonymity shouldn’t shield them from service– but Smart Study didn’t build up enough steam to get the train moving.  All that’s missing in the original argument is a diligent search for the defendants’ addresses, or proper 4(f)(3) would be a foregone conclusion.

Still, a full year on, following defendants’ opposition to the default motion, Judge Woods and plaintiff’s counsel called in a bunch of experts on Chinese law, which is wholly irrelevant in light of (1) Hague exclusivity and (2) China’s clear objection to the entirety of Article 10.  Nobody needed to get into the tall weeds on this– Chinese municipal law is not applicable– the plaintiff just needed to flesh out the proper syllogism.  Follow my logic here…

  • Without an address for a defendant, the Hague Service Convention does not apply.
  • No Hague applicability, no exclusivity problem.
  • No exclusivity problem, no prohibition by international agreement to upend 4(f)(3).
  • So… get a competent investigator to undertake a diligent search, and lay a solid foundation for a 4(f)(3) order.

That’s what should have been the basis for the original 4(f)(3) motion.  Give the judge something to hang his hat on.**

Again, the ultimate goal is to keep the infringing goods out of the U.S. market– once a District Court default is issued, it makes a §337 proceeding much easier, and that’s really the only realistic hope a IP owner has in this sort of case.

Truly, 4(f)(3) is the way, but only with a proper foundation.***


* TLB really is a tremendous resource, especially for someone seeking scholarly commentary from smarter people than some smart-mouth solo in his home office in Kansas City.  One part of Professor Dodge’s post really bothered me, though:

Judge Woods disagreed. First, he read the Supreme Court’s decisions in Water Splash, Inc. v. Menon (2017) and Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) as indicating that only methods of service specified in the Convention are permissible. This may be the least convincing aspect of his opinion. Water Splash considered whether Article 10’s permission to “send” documents through postal channels allowed them to be “served” that way, whereas Schlunk held that the Convention did not apply when service was completed within the United States according the forum’s law. Neither decision considered whether the means specified in the Convention are exclusive.

That last sentence sent my head spinning wildly off my shoulders.  I certainly agree that Water Splash is off point (and irrelevant to 4(f)(3) analysis anyway… it was all about mail, resolving a very silly semantic circuit split).  But Schlunk held far more than Prof. Dodge indicates– specifically that, if transmission abroad is necessary for service, then Hague doctrine is mandatory, as in “THOU SHALT ADHERE.”  It simply wasn’t necessary to transmit abroad to initiate the Schlunk suit.  The Schlunk opinion also specifically addressed exclusivity twice (once in the court’s opinion, once in concurrence, and not in mere dicta), holding that the Convention is indeed exclusive.  That’s the crux of this entire argument– and to my mind, the most convincing part of Judge Woods’ logic.  He simply didn’t flesh it out with O’Connor’s words.

Major kudos to Dodge, though, for this:

Finally, the decision in Smart Study provides an example of the distinctive issues raised in transnational litigation and covered in (The Transnational Litigation Blog). Judge Woods is clearly a capable and conscientious judge. He did an admirable job getting to the bottom of a difficult question once it came to his attention. But the fact that the question was not immediately apparent shows just how much education about transnational litigation remains necessary for both the bench and the bar.

Amen, sir.  Amen.  (Let’s just not be too emphatic about that… I’d still like to keep doing what I do.

** An alternative to (ie: better option than) an investigation?  Subpoena Amazon for the vendors’ contact details, insisting on true identities and addresses.  A takedown order is going to be part of the 337 anyway, so why not start early?  If they won’t comply, join them as a co-defendant and make them go blind on paperwork.

*** I omit discussion of Article 15 defaults here– sure, they’re valid, but constitutionally unsound without actual notice.  They can still be sought, though… but that’s a discussion for another post.  It’s a distractor in this situation, because Smart Study never applied to China’s Hague Central Authority.

Mustafa Kemal Atatürk… he’s still very big over there. A bit like George Washington, Abe Lincoln, and FDR all rolled into one in the local zeitgeist.

[Ten years ago, I had the great pleasure of visiting the Republic of Turkey on a CLE adventure.   A dozen lawyers (some with their families!) had an amazing time hitting seven cities in ten days… and meeting some truly wonderful people.  In a nod to that country’s wishes, I’ll spell it Türkiye* from here on out.]

Service of process in Türkiye is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to get it done:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Türkiye:

Article 5 Service

  • Translate the documents. Türkiye’s declaration to Article 5(3) does not specifically require documents to be translated, but the defendant is afforded a chance to reject untranslated process (“the performance of the service is up to the Addressee’s will”).  That rejection puts you back at square one, and that’s not a fight worth having, if you ask me..  You can be right or you can be happy… so unless the documents are incredibly voluminous, just translate it.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case Ministry of Justice in Ankara.
  • Sit tight. It may take a while—likely many months from submission to return of proof.

Article 10 alternative methods

  • They simply aren’t available, because Türkiye opposes them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Türkiye’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.


* Seriously– don’t use the English spelling if you want your stuff to pass muster.


The Grand National Assembly, Ankara

 

Façade of the Library of Celsus, among the ruins of Ephesus.

 

Your author, on the Euphrates River, crossing into Mesopotamia. May, 2012.
Offloading medical supplies in the waning days of the 1989 revolution. U.S. Air Force photo.

For most of my childhood, Romania was one of those countries that adventurous travelers wanted to see… we just couldn’t go there because it was behind the Iron Curtain, a Soviet puppet state ruled by a ruthless dictator.  That changed dramatically in December, 1989,* when the world got to watch that dictator, Nicolae Ceaușescu, removed from power and his Communist regime toppled.  Three decades on, Romania is not only democratic, but a member of the European Union and NATO, literally the front line between the Ukrainian War and the west.  I could go on, but this is about civil procedure, so…

Service of process in Romania is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to go about serving a defendant in Romania:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Romania:

Article 5 Service

  • Translate the documents. Romania’s declaration to Article 5(3) does not specifically require documents to be translated, but it’s a bad idea to omit a Romanian version unless you’re highly confident in foreign officials’ willingness to serve documents they can’t read, and a defendant’s willingness to accept documents that hale them into a foreign court.  Perhaps this is not a fight worth having, if you ask me… so unless the stack of documents is truly voluminous, just translate it.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case Ministry of Justice in Bucharest.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on your venue, but it’s a bad idea anyway.
  • Service via “other competent persons” is ostensibly available to U.S. litigants under Article 10(b)— but as Romania has not designated who is and who is not competent to serve, this is a bit of a distractor.
  • All in all, I suggest using Article 5 to eliminate all doubt as to validity.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Romania’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.


* The week of my 18th birthday, as luck would have it.  I was a college freshman– and a political science major– so I spent much of college utterly enthralled with the dramatic changes in the old Soviet sphere of influence, culminating with the fall of the USSR in 1991.  It was thrilling and fascinating to watch.

“Empty” Romanian flags with the communist insignia cut out, from an exhibit at the Military Museum, Bucharest.

 

A Romanian sub-officer gives the victory sign on New Year’s Eve 1989. He has removed the insignia of communist Romania from his ushanka.

(TL;DR… publication is a horrible, terrible, woefully insufficient means of service, and the Supreme Court said so way back in 1950.  It should only be used as a last resort, and even then, only when there’s a reasonable chance that it’ll actually notify anybody that a case is afoot.)

A story flooded my news feed last Friday… US Judge Orders a Mexican Drug Cartel to Pay $1.5 Billion to Victims’ Families.  A default for a billion and a half bucks ($4.6B after it’s trebled) is almost real money in this day & age, so I got curious about the procedural posture of the case.  Because I live in civ-pro, several questions popped into my head, first among them being “who got sued?” (with a bit of incredulity).

Only less prominent: “how did they serve the thing?”

Naturally, my curiosity made me dig into the docket a little, and the deeper I dug, the more frustrated I became.

For starters, suing a Mexican drug cartel is a bit like suing “the Corleone crime family.”  Sure, it’s an organized group and everybody knows it exists– especially the Tattaglias and the Barzinis and the ill-fated Moe Green.  In its own cinematic universe, it’s common knowledge that la famiglia really is a thing (or as they say within the thing, “our thing“).

But is it a thing in a legal sense?  No.

You can’t just name a crime family in a suit and expect to collect anything; the defendant has to be an identifiable, legal person.  A court can’t exercise jurisdiction over something that doesn’t legally exist, so I’m surprised this thing went through at all.  I’m curious to see what assets the victorious plaintiffs can seize to satisfy the D.N.D. (North Dakota?!) judgment.  Those plaintiffs and their loved ones unquestionably suffered– and greatly– at the hands of the cartel, and a big judgment is warranted against the perpetrators.  But how can a non-entity cartel actually hold seizable assets?

Beyond that, it was the service question that really tickled my brain.  In their 4(f)(3) motion for alternative service, plaintiffs’ counsel rightly noted that the Hague Service Convention wasn’t applicable because there was no address for the cartel (the Corleone Syndicate didn’t have one either, unless you count the Genco Pura warehouse at 514 Mott Street… and that’s next to impossible to prove*).  This is a great bit of logic, but the motion didn’t truly use it to highlight the critical nature of the Convention’s inapplicability.

But they went on to cite Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007 (9th Cir., 2002) for the proposition that none of the methods outlined in Rule 4(f) supersede each other.  That’s not entirely accurate.  The Hague Service Convention supersedes everything in its path, given the crystal clear holding of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).  In Rio Properties, the court didn’t address Hague applicability, because it didn’t need to.  Costa Rica hadn’t signed on to the treaty so there was no Hague issue as to the Costa Rican defendant.  Fortunately, in the cartel case last week, the Convention likewise didn’t apply (again, no address, no applicability) so no controversy arises.

Where the controversy arises is in the due process question and the entire idea of service by publication.  It’s always been a gross legal fiction, and from time to time a necessary one.  But even when it was more widely recognized, it was suspect– and Justice Jackson said so.

See, I remember back in the olden days (okay, it was the 1980s, but stick with me here), when my grandmother used to get on the phone to gossip with her sisters about who in the neighborhood was getting sued.  Our local paper carried a Legal Notices section and, without fail, one of the sisters knew somebody who’d been in a car accident or was getting a divorce and… snicker snicker, wow, didn’t that jerk get what was coming to him.

Fast forward to 2022 and nobody reads the Legal Notices section in the paper anymore.  Really.  So what in the hell makes us think that publication is a means of service that is reasonably calculated to give anybody notice of a suit.**

Rewind, now, to 1950, when some fellows in Washington, DC took up that very question– and determined the Mullane Standard for service of process.  Those fellows (well, a majority of them, anyway) held very clearly that due process rights were only fulfilled if a plaintiff undertook to serve by “a means reasonably calculated, under the circumstances…”  (you get the picture).  Take a read of Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950) to see what I mean.

Justice Robert H. Jackson– he of the U.S. Supreme Court and the prosecution team at Nuremberg.

Mullane is cited over and over and over by plaintiffs seeking to serve by publication, but apparently, nobody ever actually reads the whole case.  Justice Jackson was highly critical of service by publication even seven decades ago, yet courts continue to give knee-jerk credence to publication, without digging deeper into its reasonability.

I yield the soap box here.


*  There is no 514 Mott Street.  Mott Street only goes up to the 300 block, so…

** It’s even more farcical to suggest that a “global legal notices” website is actually read by anyone it’s ostensibly supposed to target.  A plaintiff’s lawyer would be just as successful posting on his own blog, “hey, Joe Defendant, you’ve been sued… click here to see your summons.”


Author’s note:  It’s been years since I’ve been able to work the greatest movie of all time into this blog, so the timing of this story is oddly fortuitous.

Two hat tips/homages– first, to the great James Caan, who died last Thursday at the age of 82.  As I read the alert on my phone, the only line I could think of was “they shot Sonny on the causeway.  He’s dead.”  It wasn’t even his line.  But this one was.  Another legendary gangland actor passed the following day: Tony Sirico, who had a small supporting role in Goodfellas, was legendary as Paulie Walnuts, one of the boss’ right-hand men in The Sopranos.

As a general rule, I don’t talk to litigants.  Even if their lawyer consents or hops on the call with us.  Sure, the litigant is the guy paying my fee, but his lawyer is my client, and I’m not about to get in the middle of their relationship.  Besides, it’s always a terrible idea to give a litigant control over something that is a lawyer’s ethical obligation.

From time to time, though, I’ll accede to a request from counsel just to put the litigant’s mind at ease (“hey, my client insists on talking to you before he forks over ten grand, so could we set up a call?”).  A few years ago, I was on a humdinger– a truly frightening call– and had the same thing happen again last week on a Zoomer.  The illustration here is an amalgamation, with details changed to protect confidentiality… neither litigant was “innocent” no matter how you look at it.  Here’s the setup:

Husband is an Chinese tech entrepreneur who lives in Seattle. His wife finally has enough of his abuse and infidelity, so she flies home to China and promptly cleans out their joint bank account.  He hires counsel and files for a divorce in King County, and is floored to learn that it will take a year or more before we can expect proof of service.  He wants me to talk to his lawyer in Shanghai so we can get the skids greased and make things happen more quickly.

Sorry, I say.  We can’t do that… there’s only one way to have service properly effected in China, and we have to let the procedure play out.  I explain to him that the bureaucracy is extensive (which he already knows) and very methodical (which he also knows).

Oh, you just let me worry about that.  I know people.  People who can make things happen for the right price.

This song instantly plays in my head.  Run away– this guy is not worth the few hundred bucks you might make on his case.

Why?

Well, for starters, don’t you just feel skeezy about it?  And beyond that, if the guy is that adamant about calling the shots, how likely is it that he’s going to let you do your job without wanting to dictate every single move you make on his behalf?

Even more important, how likely is it that he’ll be honest and forthright with you?  What sort of misrepresentations will you make to the court after he lies to you?

But most frightening of all is a little statute that most lawyers are unaware of because they rarely have an issue that crosses a border: the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq. (FCPA).  In short, the FCPA prohibits bribes made by or on behalf of U.S. persons.  If that Shanghai lawyer bribes a Shanghai court official to execute a Hague Service Convention Request bearing my signature… I may be on the hook for an FCPA violation.

Sure, it would be tough to connect the bribe to me.  It’s highly unlikely that anybody would ever even know about it– and even if someone in China finds out, the chances are infinitesimal that they’d ever blow the whistle at the DOJ.  Moreover, there’s a “grease payment” exception to the FCPA: de minimis amounts paid to a low level official to speed along something they’d be doing anyway… well, they’re not going to waste prosecutorial resources on that.

Sorry– for the few hundred bucks I might make on the project, it just isn’t worth the risk, to my liberty or to my reputation.

Worst starting hand in Hold ‘Em.  You draw this… just fold it, man.

(See the author’s note below for clarification on which Hague Convention!)

A Hague Service Request, commonly known in the United States as a “USM-94” but also used in Canada, can be at once straightforward and daunting.  On the surface, it’s really just a fill-in-the-blank form.  But the devil is in the details, and when hell breaks loose in Georgia, the devil deals the cards.  It’s not as easy as it might seem, for a whole bunch of reasons.*  Yet not all is lost.  You really can simplify things in a couple of ways (yes, we can do it for you, but that’s a separate discussion):

  • Avail yourself of some help on the Hague Envoy platform at usm94.com (shameless plug here).  It’s sort of like using tax prep software in the run-up to April 15th… answer a dozen or so questions, and the system will generate a completed Hague Request form, a sample cover letter, and thorough instructions on what & how to print and where to send everything.
  • Or follow this comprehensive, step-by-step How-To Guide.  I published it back in 2016, and it’s still completely valid, but a Cliff’s Notes version is in order.  Here’s an abridged version of the guide…

Steps in order:

  1. Make sure you have the right version of the form for the country you’re sending it to.  The Hague Conference on Private International Law provides model documents here— in both Word and fillable PDF– in multiple languages.  English and French run throughout, but they also have tri-lingual versions, particularly in German, Spanish, and Chinese.
  2. Fill in the blanks for your name & contact info (by “your” I mean the name of the lawyer who will sign the form) at the top of page 1.
  3. Over on the right, enter the name & address of the appropriate Central Authority in the destination country.
  4. Enter the defendant’s name & address (if you don’t have it, stop what you’re doing and see here), then check box A right below it.
  5. List the documents you need to serve.
  6. Indicate the city where you’re signing it, and date it.  After you print, you’ll sign at the bottom right, counselor.
  7. Leave page 2 blank.  The foreign authority will should use it as proof of service.  [Okay, they do it maybe two times in ten.  The other eight, they just use their own blanks.]
  8. On page 3, enter the defendant’s name & address again, just like you entered it on page 1.  Yes, I know this is redundant.  Do it anyway.
  9. And at the bottom, indicate the legal aid office nearest the court.  Yes, I know.  A massive international conglomerate doesn’t qualify for legal aid.  Do it anyway.
  10. On page 4, enter your name & contact info again, just like you entered it on page 1.  Yes, I know this is redundant.  Do it anyway.  (See a pattern here?)
  11. List the parties as they appear in the case caption.  (If the list is really long, you’re usually okay just listing the lead plaintiff and lead defendant, then say “please see complaint/petition/statement of claim for a complete list of parties.”)
  12. Nature and purpose of the document?  I usually say something like “To inform the defendant of a claim against it and to demand its appearance at court.”  No need to get wordy.
  13. Nature and purpose of the proceedings?  Just give a very brief sentence or two about what the case is about– again, no need to get wordy.  You’re not arguing here.  This is the elevator pitch, like “Plaintiffs accuse the defendant of, inter alia, negligence resulting in injury.  They seek damages, costs, and fees.” **
  14. Date and Place for entering appearance?  That’s the court— not plaintiff’s counsel’s office.  In short, where do they go, and when do they have to do it?
  15. Unless you’re enforcing a judgment or seeking a modification, the next two boxes will be n/a.
  16. Time limits stated in the document?  Just reiterate when they have to appear.

End of list.

Pocket rockets.  That’s much better.

Of course, there are lots of do’s and don’ts involved here– not the least of which is the minefield that is translation– but nobody has time for that here.  This is merely an overview, so for country-specific perspectives, hit the search bar in the upper right corner of your screen.  For the record, we’re always happy to offer a bit of guidance beyond what’s indicated here and in the original, longer version of the guide, so don’t be bashful.

 


* If it were truly that easy, I wouldn’t have a practice devoted entirely to this procedure.

** I love that phrase, inter alia.


Author’s note: I hate to be so pedantic, but it’s critical to know that there’s no such thing as “The” Hague Convention.  This pertains to requests sent to foreign authorities pursuant to Article 5 of the Hague Service Convention.  It is not a guide for requests under other Hague Conventions– and that’s a vital part of the question, because there are over three dozen of them.  We’re talking here about serving summons & complaint combinations– or citations/petitions depending on forum– as well as subsequent pleadings.  If you’re looking to serve a subpoena, this is also not what you want.  Instead, you want to talk to Ted Folkman about a Hague Evidence Convention request.

 

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server China” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Shanghai or Shenzhen or Beijing to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN CHINA. 

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in China, and you need to get him served tout de suite.**  So you Google “Process Server China” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with China’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant over there, and it involves a very lengthy wait following a request to the Justice Ministry in Beijing.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you– if you do, that guy could be looking at a very long prison sentence for usurping the state’s authority.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Hong Kong, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.


* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in China, and there’s no such thing as a service of process emergency anyway.)