Service of Process Abroad

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

A bit of 4L stuff here– the stuff they never mentioned in Civ Pro class because it was so basic as to be assumed [ahem, we all know what assumptions do].  Your assigned readings today are Mullane v. Central Hanover Bank Trust Co, 339 U.S. 306 (1950)  and  Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).  Additionally, read the Hague Service Convention and the Supremacy Clause.  Be prepared to discuss both cases in a sadistic Socratic “rolling boulder” scenario.

The topic: service of process, both (1) generally speaking and (2) more specifically as it relates to defendants located abroad.

To boil it all down, a plaintiff has to tell a defendant that a lawsuit has been filed and the defendant has X days to answer the complaint.  The defendant is literally summoned to court by the plaintiff.  But there’s nothing in U.S. law that absolutely, positively requires that process be placed into the hands of a defendant.  Nada, zip, zero, zilch– despite how old TV shows might portray the event.  To the chagrin of many defendants, they can’t simply refuse to take hold of an envelope when a process server walks up to them.   The encounter itself is sufficient, regardless of their acceptance.

Conversely, it’s not enough for a plaintiff to tack a summons on the bulletin board at the neighborhood coffee shop, in the hope that the defendant will see it.  The plaintiff has a responsibility, and it amounts to this:  service by a means reasonably calculated to give the defendant (1) notice and (2) an opportunity to defend against the claim.  (Pay attention to that verbiage, because there’ll be a quiz later on.)

The methods most often used:

  • In most instances, a “means reasonably calculated” entails a sheriff, marshal, or professional process server walking up to the defendant– or up to the defendant’s house, or into a corporate defendant’s registered office– and handing him/her/it an envelope of documents.  If he* refuses to take it, too bad.  The person serving can simply drop the documents at his feet and the job is done.
  • “Reasonably calculated” can also include serving someone by mail.  At least legally speaking, it’s on solid ground.  Factually, though, a bit shaky.  As in “prove it, pal.”  If you can’t demonstrate that the defendant actually signed for the package, you’ll have a tough time claiming that he was served– especially if you can’t prove that you have the right address.
  • And a method that we old duffers may recall is the “legal notices” section of the local newspaper.  Service by publication, they call it, and it’s still on the books in lots of jurisdictions to this day.  As a last resort, I’m okay with it, just to demonstrate that the plaintiff is trying, even though the defendant has gone deep underground (ie: vanished).  But it’s only okay only everything else has been tried and failed.  Honestly, when is the last time a non-lawyer read the legal notices section in the local paper?  At that, when’s the last time most people read the local paper?  A gross legal fiction if ever there was one, but if a defendant has gone completely dark, it’s the only way.

Overseas, things work a bit differently, especially in civil law jurisdictions (eg: anyplace that wasn’t once a British colony).  Service of process in civil law systems is a prerogative of the court, rather than the responsibility of the plaintiff.  Long ago, a method called notification au parquet entailed tacking a notice on the aforementioned bulletin board– only the board wasn’t at the local coffee shop.  It was at the public prosecutor’s office.  Today, N.P. has pretty much gone the way of our newspaper notices– still on the books in many places, but given its lack of realistic odds of success, this (even more gross) legal fiction is also a last resort.

But back to today’s assigned reading.  Mullane set out the “means reasonably calculated” standard.  Schlunk takes that idea a step further by confirming that if a defendant has to be served in another country that is party to the Hague Service Convention, then the Convention’s strictures must be followed.  Period.  The Supremacy Clause puts it above FRCP and state rules (although FRCP and quite a few states have codified Schlunk anyway).

In most civil law jurisdictions, that means the private process server option is off the table– even if the “destination state” doesn’t object to Article 10.

The ultimate takeaway: don’t play fast & loose with the defendant’s right to notice, and certainly don’t play fast & loose with the doctrines that govern how things have to happen when paper crosses a border.

Class dismissed.  See you next week when we discuss the extraordinary value of Civ Pro professors who wear bow ties.**


* With a nod to gender equality and an accurate statement by Mitt Romney (he was right, I hate to admit), I’m leaving out the he/she/it distinction from here.  I use “he” merely for simplicity.  My mom would thwock me on the head if I were intentionally disrespectful to women.  My wife and sister would join in.  And they’d be justified.

** A bit of an homage to my good friend Jeffrey Berman, who retired a couple of years ago as Associate Dean at UMKC Law.  He was my Civ Pro 1 professor, and used Beanie Babies to beautifully illustrate the concept of joinder.  We never got into the tall weeds of service of process (thus the impetus for this post), but I learned a bunch from him.

This caused no small amount of anxiety about his presence in my CLE lecture in Paris in the fall of 2016.  Teaching your teacher is an awesome, yet incredibly daunting, experience– especially when you live in the subject the fellow taught you.  But he came up afterward, shook my hand, congratulated me, and said he learned a bunch.  Like the Grinch’s heart on Christmas morning, my head swelled to three times its normal size that day.

I have on very good authority that Jeffrey still wears a bow tie as he teaches 1L Civil Procedure as professor emeritus, and 1Ls come out of the Beanie Baby lecture with a keen understanding of how whales can sue husband & wife unicorns.  Just sayin’.

(Wm. Grimes, via Wikimedia Commons.)

Our handy-dandy “How to Serve Process in China” guide has been posted for quite some time.  Pretty straightforward stuff, given that the Chinese declarations to the Hague Service Convention eliminate Article 10’s alternative methods from the equation.  There’s only one way to get it done, and that is by filing a USM-94 with the Ministry of Justice in Beijing.  On its face, a seemingly simple undertaking… rock & roll that thing on over to the PRC.

Not so fast, though.  It’s always been a bit more complicated than that.  For starters, the Chinese bureaucracy is excruciatingly slow– historically, they’ve taken six to nine months to return a proof of service.  Lately, though, more than a year passes, and there are rumblings in the transnational litigation community that they’ve stopped executing U.S. requests altogether.  But Hague strictures remain mandatory doctrine in U.S. procedure [see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) for more], so you have to at least attempt it.  And unlike their counterparts in Russia, the Chinese have not expressly stated that they will not execute U.S. Hague requests.  Instead, China assesses a reciprocal fee of $95 per request– as a countermeasure to the U.S. fee charged due to Congress’ outsourcing of the Justice Department’s Central Authority function.*

But recently, two critical developments have come to light, and practitioners need to know about them:

First, the reciprocal fee can no longer be submitted by check.  The fee has to be wired to our friends in Beijing, and a wire transmittal confirmation must accompany the Hague request instead of a bank draft.

Second, they moved!  And they didn’t tell anybody for a couple of months.  The new address for China’s Hague Central Authority:

Ministry of Justice of China
International Legal Cooperation Center
No.33 PingAnLi XiDaJie
Xicheng District, Beijing,100035
People’s Republic of China

Critical information right there.  And there’s been no official notification to the Hague Conference for a website update– as of this writing, the Conference’s site still shows the old address (which is summarily walled off, my courier tells me) and it can only be updated upon official notification from Beijing.  An update is coming eventually, I’m confident, but meanwhile a good many requests could be lost in the ether.


* I still happen to think the Russians are completely justified in their recalcitrance.  I also think the Chinese are completely justified in their reciprocal fee requirement.  The Convention prohibits fees, but we charge one anyway because Congress decided we didn’t need all those gubmint employees drawing a paycheck.  Now, to be sure, the Central Authority function is outsourced to a top-flight organization– and I’m a huge advocate of outsourcing where it’s reasonable.  But the United States charges foreigners a fee for something that ought to be a routine government function, provided at public expense.

This is a reboot of a post from last year, but it bears repeating: summonses in bankruptcy adversarial proceedings must be modified if they are to be served on a defendant located abroad.

The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court.  Perfectly logical.  And Rule 7004 governs how to serve the summons.  Again, logical.  But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.

The reality is that a bankruptcy action is going to be served under Rule 4 in most cases.  That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad.  Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it.

Bankruptcy lawyers are under no heavier a burden than the rest of us.  No difference in how you get service effected, whether a bankruptcy adversarial proceeding or a personal injury suit.  There’s a problem, though:  proper Hague service takes a while— a very long while in many instances– and bankruptcy summonses must be answered within thirty days after issuance.  Not a big problem here at home.

But, hang on, says the adverse party.  It is a problem here at home.  You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer? 

Well, no, not exactly.  The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e).  Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).

But 7004(e) applies only within the United States.  The seven-day rule doesn’t apply when serving abroad.*  So how to get around the expiration?  Simple.  Just modify the language.

To be fair, any adversary is going to need two or three weeks to properly answer a complaint.  This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?).  Simply put, though, if you have to serve an adversary outside the United States, it ain’t gonna happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.  But if it’s not done in either of those two countries, forget it.

Tell the Clerk that the summons (Form B 250A) must set a deadline based on the date of service— not based on the date of issuance.  Best bet: go 21 days, just like you’d have in a regular AO440.  It doesn’t have to be an overly complicated edit, and it doesn’t have to alter the substance of the document itself.  Seriously, the picture above shows it all.

Woman in Gold, Gustav Klimt, 1907

Here we go again.  Every few weeks, somewhere in these 50 states, a case gets dismissed for lack of proper service on a foreign sovereign (or foreign state instrumentality).  There’s not a single rule, statute, or customary practice that ought to tell a plaintiff that just dropping a summons & complaint on a receptionist’s desk at a foreign diplomatic mission is effective. Write this down…

THAT.  DOES.  NOT.  WORK.

Unless they’re exceedingly dense, opposing counsel is going to 12(b)(5) the hell out of your claim.  Very likely after Rule 4(m)’s 90-day deadline passes (uh oh).  Your client will be less than amused.  So don’t even try.  No, really.

Late one afternoon, on a plane ride home from Italy, I clicked into that high-tech touchscreen (you know, the one that works sometimes) on the seatback in front of me.  I’ve always had a bit of a crush on Helen Mirren, so I spent a very worthwhile 109 minutes watching Woman in Gold.  It really is an incredible film, depicting a Los Angeles woman’s quest to recover a legendary painting that had been stolen from her family in the early days of the Nazis’ attempt to eradicate the Jews of Europe.

Some five decades after the war, she learns that the painting hangs in the Austrian state museum and, with the help of an energetic young attorney (who looks strangely like the Green Lantern), launches a lawsuit against the gallery that purports to own it.  Because the gallery is owned by the Austrian government, the Green Lantern says process has to be served by sliding the summons & complaint through a teller’s window at the Austrians’ L.A. consulate.  And litigation begins in earnest.

Had I been alone in my own home, I would have emitted a deathly scream unlike has been heard in Kansas City since we dropped the 2014 World Series.  I’m Norwegian, so it would have looked like this:

But… aircraft decorum prohibits such noise when fellow travelers are trying to sleep, so I kept my mouth shut and grumbled through the rest of the movie.  Why the mental torture?

BECAUSE HOLLYWOOD SCREWS UP THE RULES.

There’s no way in hell that the real Randy Schoenberg got it done that way.*  Not a chance, unless he really was young and green (okay, that I understand) and the lawyers hired by the Austrian government were simply clueless.

If they weren’t clueless, it would take all of seven minutes to draft the 12(b)(5) motion.  And that includes time enough to open and pour a Stiegl to consume upon completion.

In reality, the Foreign Sovereign Immunities Act controls the method of service– and in this case particularly, 28 U.S.C. §1608(b).  That statute, in turn, raises the question of how service is effected in Austria.  Simply put, a Letter Rogatory.  End of options before resorting to diplomatic note.

And because HOLLYWOOD SCREWS UP THE RULES, lawyers far & wide stop short of investigating how to do it properly.  It staggers the imagination.

Seriously…  just do this.


* I emailed the man himself.  Randy, dude, how’d you really do it?  No answer.  I really blame Hollywood scriptwriters for this, in the same way infantrymen curse filmmakers who lack the good sense to hire Dale Dye.

Thirty years ago today, the Nine Wise Souls heard oral arguments in the seminal case, the kingpin-opinion, the granddaddy precedent, in what I do.  Volkswagenwerk Aktiengesellschaft v. Schlunk, (opinion issued that June, and available at 486 U.S. 694) involved a wrongful death suit against the German automaker and its U.S. subsidiary.  The plaintiff, whose parents were killed in a highway collision, served the German parent company via the subsidiary, which happened to have been headquartered in Chicago at the time.

Now, ordinarily, I argue that you can’t just serve a subsidiary.  The very idea of it tends to disregard the corporate veil.  But Illinois happens to have a statute that allows precisely that– if a foreign* parent has an Illinois subsidiary, then that sub is designated by law as an agent for service on the parent.  On the surface, it might seem that this conflicts with the Mullane doctrine (service must be effected by a means reasonably calculated… to put the defendant on notice, and afford him an opportunity to defend), but it stands to reason that if the sub knows, they’re going to tell the parent.

But the issue in Schlunk was only related to Mullane analysis in part.  Accepting the validity of the statute, Justice O’Connor disposed of the matter pretty quickly…

Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. (…)  (C)ontrary to VWAG’s assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national.

However, if you can’t get the job done here, and you have to serve the foreign national in his/her/its home country (assuming it’s a treaty member), then you have to follow the treaty.  Period.

It’s as good as holy writ today.  In 1988, it wasn’t so certain.**

(If you have an hour, you can listen to the orals here.)

 


* Foreign is a term of art, and it doesn’t just mean “outside the United States.”  It means “outside this particular jurisdiction.”

** I was a junior in high school at the time.  I was certain about everything.

A blank Hague Certificate. Seriously– this is all there is to it.

What has become known in the United States as a Form USM-94 is a four-page document:  (1) the Request for Service Pursuant to the Hague Service Convention, (2) a blank Certificate of Service, (3) a “Notice” or “Warning” — essentially, a cover page for the defendant’s benefit (which name it carries  is dependent on how old the form is), and (4) a Summary of the Documents to Be Served.  The second page is an interesting animal, because, in a perfect world, you would print the blank Certificate on the reverse side of the Request form, and the overseas Central Authority would complete and return that very page to you.  When that happens, it’s very easy for the forum court to see that the Certificate relates to a particular Request.

Most of the time, though, it doesn’t happen that way– like I said, in a perfect world.  Nine times (or more) out of ten, the Central Authority will simply generate its own Certificate in Microsoft Word, typing in the details rather than handwriting them on your blank.  This is at once a blessing and a curse.

It’s a blessing because the completed detail is actually legible, and that can never be a bad thing.  In all cases, typed text > scribbled scrawl.

But it’s a curse because, very frequently, they don’t actually reference the Request you sent, they don’t indicate a case number or caption or parties’ names, they don’t actually name the defendant, or…  see my point?  Oftentimes, the Central Authority says the documents (which ones?) were served on February 19, 2018 at 1234 Main Street in Winchestertonfieldville, they were handed to Pat Smith– Receptionist (um, who?), and service is complete.  With much love and admiration from the Central Authority (STAMP), on March 19, 2018.

Uh, okay.  Thanks?

The Certificate is then stapled to a 37-page sheaf of documents in a language you can’t read, themselves stapled again to the duplicate copy of the Request and service documents, which you provided.– including the completely ignored second page.

Don’t be alarmed.  This is normal.  Just be careful to scan the right information before you e-file.  That is, make sure that whatever you upload to the court connects the dots between the Certificate and your Request.  Beyond that, the other documents are superfluous.  Yes, the judge may want to see them, but they are legally unimportant, because the court shouldn’t look behind the Certificate to make sure the documents were served in accordance with the foreign jurisdiction’s law.  The Certificate itself is like Kevlar– bulletproof– so long as it is based on a valid request (and defense counsel should ALWAYS question that).

Jimmy Sellers was my best friend in the sixth grade– and best man when Peggy and I got married.  We never went to an art museum in 1982.  [This is how we would have forged the thing.  Both of our moms were NCO wives, so we would have gotten smacked.  Hard.]

Alternate title:  How to Get a Judge to Sign a Letter Rogatory.

It’s actually quite simple.  Rather like getting your mom to sign your permission slip for a sixth grade field trip to the art museum.

No, really.  There’s not a whole lot of fanfare in asking a judge to sign a Letter Rogatory for service in a non-Hague country.  Although nothing really mandates its use,* this old-fashioned device can be critical to enforcing a judgment down the road.  Just mailing process to serve is usually a bad idea, and professional process servers don’t exist in civil law jurisdictions– at least not in the way we comprehend them in the common law.

If you might have to ask an overseas court to enforce a judgment against a defendant served in, say, Taiwan or Singapore, one of the first things that court will examine is how you served process.  The Letter Rogatory removes all doubt that service was effected according to the law of the jurisdiction where process is served.

Unquestionably, it is natural for a practitioner– especially a newly minted associate– to feel a bit of trepidation about the procedure.  Relax.  This instrument is a pro forma device, and courts understand its validity, because they use them to request judicial assistance from state to state.  Missouri judges send Letters Rogatory to Alabama and Oregon from time to time.  It’s not a daunting task, as long as counsel explains the logic to the court.  That just requires the right vocabulary, in a Motion for Issuance of Letters Rogatory:

  • Motion:  “Hey, judge, we need (XYZ) and would appreciate it if the Honorable Court would grant our request for (XYZ).”
  • Issuance:  The judge signs the Letter, making it an officially “issued” document.
  • Letter Rogatory:  Just a note from one judge to another, asking for a little help– for service of process, compulsion of evidence, the chance to have dinner with the Chief Justice of the Constitutional Court while the American judge is in Paris on a CLE adventure (hint, hint)
  • One more term worth noting:  Execution of the Letter.  That’s what the foreign** judge does when s/he orders her/his staff to do what the Letter asks.

Simply another way to keep the wheels of justice turning.  Don’t be intimidated by it.

Unless your mom was intimidating when you asked her if you could go on that field trip in 1982.  In that case, flowers are always good.


* Exception: Austria, at least for now.  Austrian law prohibits service of foreign process by any method that isn’t pursuant to a Letter Rogatory.  For now.

** Foreign is a term of art, meaning anything outside the jurisdiction.  It doesn’t just apply in a “you need a passport to go there” sense.  It can also mean in the “across State Line Road” sense.  French law is foreign to Missouri, but so is Kansas law.  (Around here, we Missourians argue that Kansas is foreign to everything, but that’s all in good fun.)

These are dry cells– not batteries. Far less likely to explode than the lithium ion devices at issue here. (They’re also far less capable of doing the job.) Public domain, Wikimedia Commons.

Back in law school, I marveled at the most prevalent type of case discussed in Product Liability class… exploding pop bottles.*

To hear Allen Rostron (my P.L. professor, now Associate Dean Rostron) tell it, the whole of tort law developed on two concepts:  (1) unfortuitously agitated carbonation and (2) the brilliance of the Honorable Stanley Mosk.

Sure, I exaggerate– fireworks and railroads helped— but I still can’t get over how much the field of law developed along with the modern bottling industry.  Today, injuries from ruptured beverage containers are a rarity, in large measure due to the plaintiff’s bar (the same goes for just about everything else in the modern world that used to hurt people and doesn’t anymore).  At the base of product liability law is a very simple thought process:  “Hey, if I buy this thing, will it cause me severe bodily injury?  No?  Great!  Take my money.”

In an excellent post over at the Product Liability Blog, my Wisconsin colleague Rich Schuster discusses E-Cigarette Explosion Cases and Legal Practicalities.  Setting aside the debate about the respiratory risk of “vaping”, Rich offers that “the need for more power in smaller packaged batteries, coupled with questionable supply chain practices marked by non-existent or inadequate quality assurance testing, can lead to the unintended consequence of battery cell explosions.”

Yes.  Explosions.  The things blow up.

Let’s consider the vape user’s subconscious analysis:  Hey, if I buy this little device that will efficiently administer a legal drug of my choice, will it blast a hole in my leg?  No?  Great!  Take my money.

Of course, we don’t actually ask the question.  But it’s still part of the analysis, and it’s at the heart of the legal calculus in defective product cases– our expectation of a safe product is the foundation of the claim.  Users of e-cigarettes often have a tough time gaining sympathy from their fellow citizens when the product inadvertently blows up, and that’s awfully unfair.  But change one word in that equation and the kindness flows– instead of e-cigarettes, how about phones?

Phone users meet with great sympathy from their fellow citizens when the product inadvertently blows up.

It’s essentially the same technology involved.  A dense mass of various metals and potentially volatile liquid chemicals jammed and sealed into as small a compartment as possible, for the purpose of generating a sufficient electrical current to power a consumer device.  Phones, vapes… really, they’re the same thing.  And why?

Because when you buy them, you naturally expect them to NOT BLOW UP.

Phone batteries don’t have quite the same supply chain issues as e-cig cells, and they need a smaller amount of current over a longer period of time, but a battery is a battery in the mind of the reasonable person.  You expect them to generate the amperage and voltage you need over the expected life of the device, and then… it just fades away.  It does not turn into a violently expanding ball of flame.

So, what in the heck does this have to do with the Hague Service Convention

Well, as Rich in Wisconsin puts it, “Manufacturers of e-cigs batteries are frequently Chinese corporations with few or no ties to any particular state.  It can be difficult to achieve proper service of process over these companies… (and it) can also be difficult to convince clients to incur the costs to even attempt service… .”

He’s absolutely right.  The costs are high, although there are ways to mitigate them, at least a bit.  But if you do sue the vape shop owner and the manufacturer’s U.S. distributor and you don’t bring that manufacturer into the case, you can count on the American defendants pointing the finger right back at China.  Especially in states with innocent seller laws, you may get nowhere without having the manufacturer haled in.

Likewise, if you sue the store where you bought your fancy Model TK-421 smartphone (it blew up, of course), don’t you think the merchant might demur, opting to pin the blame on the Korean or Chinese or Vietnamese company that made the thing?  Ibidum.

Whether it’s an exploding e-cigarette battery or an exploding phone battery, the suit goes nowhere unless you properly serve your offshore defendants.  So do it right the first time— don’t simply wait until you’re past zero barrier.

 


* In the Midwest, we call it pop.  Get on board with that if you want to stay here.  If you call sweet, fizzy soft drinks “soda”, you’re wrong.  Soda is white powder in an orange box, and its job is to keep the fridge from stinking.  If you call it “Coke” you’re doubly wrong, and should seriously consider your profession, because… precise language, counselor.   “Soda pop”… well, you get a pass, because, at least you’re trying.

**  Seriously, you’re telling me that sucking that ionized chemical cocktail into your lungs isn’t horrendously bad for you?  Pull the other one.

Hedwig‘s cousin, Dave, who used to deliver mail for a grumpy old warlock in Hogsmeade.  When he retired, Dave found life in the Muggle world far less taxing. [Floyd Davidson via Wikimedia Commons.]
Last May, the Supreme Court resolved a circuit split– quite decisively– over the validity of serving a defendant by mail under Article 10(a) of the Hague Service Convention.  In Water Splash v. Menon, the Court cleared up all debate and held that, yes, Hague mail service is fine… under certain conditions.

The big condition: the destination country (ie: where the defendant is located) can’t object.  Many countries do object, so if you need to serve in China, Germany, Mexico, or Switzerland (just to name a few), sorry.  You can’t.  It isn’t valid in those countries, regardless of Water Splash.

And perhaps even more critical:  the forum court’s rules have to allow it.  If the case is being heard in a jurisdiction that views mail service as invalid,* the Hague Service Convention doesn’t magically make it okay.  There’s no fancy spell that Hermione Granger can conjure up to confer validity on mail service.  Professor Dumbledore cannot simply wave his wand and make it okay.  Harry Potter can’t just send Hedwig instead of hiring a process server.  (I’ll stop.)

So the Supremes sent the Water Splash case back down to Texas, where, as luck would have it, the state courts don’t allow mail in the first place.  After all that fighting over Article 10(a), the parties missed the far simpler argument.

Regardless, mail is a bad idea except in the rarest of cases anyway.


* My personal take:  mail isn’t a means reasonably calculated to put a defendant on notice of the claim against him/her/it (see Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).  Mail is almost as horrible a legal fiction as publication, when it comes down to it.  Don’t get me wrong– I still think the U.S. Postal Service is a pretty effective outfit, despite how much it is maligned by the very people who govern it (I’m looking at you, Congress).  But even though the Post Office might deliver a letter, that doesn’t reasonably ensure that the right person receives the envelope.  If you have to mail it, I suggest a belt & suspenders approach: serve by mail, in conjunction with email and Facebook.

Palace of Justice, on Plaza de Bolivar, Bogota. Kamilokardona, via Wikimedia Commons.

Most of us in the U.S. have a fairly warped image of Colombia in our heads– usually something to do with cocaine or a big emerald the size of your hand.  If it’s not Pablo Escobar in (pick a movie about the drug trade), it’s Michael Douglas sliding down a rain-soaked hillside after Kathleen Turner in Romancing the Stone.

Oh, yeah, and then there’s Shakira… whose Hips Don’t Lie.  She’s Colombia’s biggest export of late.

But there’s quite a bit more to this South American nation than drug trafficking and pop culture, and litigation involving legitimate Colombian companies is picking up lately.  For about four years now, serving process in Colombia has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

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

Now, for the chase scene.  Here’s how service is done in Colombia:

Colombia in the Hague Service Convention

The Convention only entered into force for Colombia in November, 2013, and the Colombians have yet to make their declarations known to the Hague Conference.  That’s such a short time that they really don’t have much of a track record for Hague Service requests– by comparison, Mexico took a decade to really hit its stride, make its declarations known, and get the job done… but serving there is still not smooth.  For my money, you’re best served (very bad pun intended) to stick to what’s known on Colombia.  Don’t assume, just because they haven’t said anything, that everything’s jake and you can use Article 10.  It ain’t.

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. Colombia’s declaration to Article 5(3) only says that they’d appreciate having your request completed in Spanish– there’s no real requirement indicated.  Seriously– just that they’d appreciate the form being in Spanish– although they recognize that Article 7(2) says it doesn’t have to be.  The reality is that if you don’t translate the served documents into Spanish, your request will probably be rejected, if not by the Central Authority, then by the local officials who actually execute the request.  Plus that, always keep Due Process/Natural Justice requirements in mind.
  • 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 Central Authority.
  • Sit tight. It may take a while—likely 9 months, perhaps a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Colombians haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in Colombia, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  It may take an interminably long time, and in many cases, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all.  Pablo Escobar may be dead, but hometown loyalty is not.

Colombia’s Central Authority information—as well as that of all the other countries in the treaty—can be found here.


You didn’t seriously think I’d do this without a picture of Shakira, did you?

Shakira looks like my wife’s cousin, the anesthesiologist.  [I actually spelled anesthesiologist on the first shot. Yes, I Googled it to make sure.]