Service of Process Abroad

Via Wikimedia Commons.

On at least three separate occasions in as many weeks, a client or client’s paralegal has asked me for guidance on the issuance of a summons.  In each case, the clerk of court insisted that (1) a special summons was necessary in order to comply with “Hague Convention requirements”, and that (2) the foreign Central Authority had to be appointed as a special process server.

Ahem, no.  Neither is accurate.

For starters, there’s no such thing as THE Hague Convention.  There are more than three dozen of them.  Now, here, it’s obvious they mean the Service Convention, but still… just naming the proper treaty seems to be a challenge.  [For elaboration, see Überpicky Vocabulary Distinctions, Volume 2: Get the name of the treaty correct.]  More importantly, though, there isn’t a single phrase in the Hague Service Convention that requires a special version of a summons.  Not one.  If you’re suing three defendants in Chattanooga and two in China, the same summons will work for all of them.  You don’t need a different form for the offshore targets, because they do precisely the same thing, which is to command the defendant’s answer and appearance at court.

If the clerk says otherwise, the clerk doesn’t understand the mechanics of the procedure.  The Convention addresses the manner of service [the heart of a 12(b)(5) motion] rather than the substance of the service documents [which falls under 12(b)(4)].  In short, Hague doesn’t care what gets served– just how.* Some Authorities in Asia may ask for “wet ink” summonses (that is, signed and stamped by hand– as if it’s 1987 again), but no special form is necessary.

As to the U.S. court appointing a Central Authority as a special process server, again… no.  The how is not determined by forum rules when a defendant is located outside the United States.  The laws of the country and locality in which they’re served govern the manner of service, and our courts must defer to those foreign laws.  The assertion by a U.S. court that it has the power to appoint a foreign Central Authority to serve in that Authority’s own jurisdiction… borders on insult.  Not only that, but it completely disregards the Supremacy Clause.

Now, the clerk may have a vague understanding that Hague forms must be signed by a court official, an attorney, or someone designated by the court.  That’s another matter entirely, and it misses the point that the lawyer can handle the entire thing.


* One exception: subpoenas.  They aren’t process, but then again, the Service Convention isn’t limited to process.  It covers the service of “Judicial and Extrajudicial Documents.”  To common law lawyers, that necessarily includes subpoenas, but not to the civil law community.  Subpoenas are governed by a different treaty– the Hague Evidence Convention.  A wildly different creature, that one.

Calendrier des Postes 1912 sous les pins Côte d’Azur— via Wikimedia Commons.

Very frequently, I rail in this space about keeping service costs down by reining in the length of documents to be translated.  But even assuming a limited stack of docs to serve, that’s not the only way to limit expenditures.  Timing is critical, too.  The longer you wait, the more it can cost– and I don’t just mean the increase in my fees to handle a project on a rush basis.

Every once in a while, I’ll talk to a client (a lawyer, specifically) who has just filed a suit and has everything ready to go abroad under the cover of a Hague request… the vaunted “USM-94” in common U.S. parlance (though to be fair, it’s not a U.S. government document– it just carries a U.S. Marshals Service document number).  I tell the lawyer it will cost a few hundred dollars in fees, plus a couple of thousand in translation.  I formalize the cost structure, send it off to my colleague, and… crickets.  I don’t hear anything for weeks.  Perhaps that’s because the litigant wants to wait.  Perhaps it’s because the litigant is short on funds.  I get it, really.

But lo and behold, the case gets removed to federal court, and counsel realizes that the clock er– calendar– has already been ticking for weeks.  This thing has to start moving within 90 days of filing* or the foreign defendants will eventually be dismissed for lack of notice.  So counsel calls me and says, okay, let’s go with it.  But when the documents arrive, he’s added twelve pages of additional documents, and the summons has changed from a state form to the federal standard (the AO 440— which is a U.S. government document).

Sure, there are tactical and strategic reasons to wait.  Perhaps counsel knows that it’s going to be removed, and when it it does go up to federal court, he has a mechanism to request a waiver.  Perhaps opposing counsel is not playing nicely with others and is leading him to believe that a waiver is forthcoming– even though it never does come.  Perhaps, again, the litigant just doesn’t send a check.

But waiting can be costly in Hague situations.  Where translation is required, the price tag can grow dramatically with the addition of federal documents on top of the state pleadings.**  That is why I urge a more timely approach to serving overseas.  All courts’ rules require action within a certain time– either by a certain date or within a reasonable diligence standard.  But if that time period is rather long and most of several defendants are stateside, either the foreigners can get missed, or the cost to serve them can increase.


* FRCP 4(m) requires that U.S. defendants be served within 90 days, or the court must dismiss the case against them.  But service on defendants located outside the U.S. are addressed in the last sentence of 4(m); simply put, the deadline doesn’t apply.  That doesn’t mean a plaintiff has all the time he wants– a reasonable diligence standard applies.

** FRCP 4(c)(1) requires service of the summons and complaint.  That’s it (although the complaint necessarily includes exhibits & attachments).  But the list doesn’t end there when the case has been removed from state court.  Add the order/notice of removal.  Add such additional gems as the Civil Cover Sheet, garden variety standing rules, litanies about standards of civility, etc., in the individual districts whose local rules so dictate.  Individual judges may even require service of their own rules of practice– and these can be awfully dense.  For every additional page, the cost to translate can go up by $100 or more per page.

“Since brevity is the soul of wit / And tediousness the limbs and outward flourishes, I will be brief…”
Polonius, Hamlet, Act. 2, Sc. 2.  “Each allegation must be simple, concise, and direct. No technical form is required.”  FRCP 8(d)(1).

In a valiant quest to be a paperless lawyer, I strive to limit the hard copies I produce.  As such, if at all possible, I try to email service documents to my overseas associates– process servers, solicitors, bailiffs, etc. for printing in their offices.  Simply put, even at the end of 2017, physical pages must still be placed into a defendant’s hand (or dropped at a recalcitrant defendant’s feet).  A PDF simply won’t do (although it’s coming).  The number of places in which the person actually serving the documents can print them is significant, and it saves reams of paper, gallons of fuel, and a great many headaches.  But there are still many countries that still require Hague service requests to be submitted in hard copy, with translations, in duplicate.  This delights Georgia Pacific and FedEx for obvious reasons.

But those reams of paper and gallons of fuel and numerous headaches can be saved by simply limiting the volume of pleadings submitted.  I argued earlier this year that the cost to serve an offshore defendant under the Hague Service Convention requires brevity and, where possible, the avoidance of exhibits.  This past weekend, I processed a series of service requests in which the total cost for translation reached into the six-figure range, and the printing run was counted in reams, rather than pages.  The requests were going to Japan and China– two countries where hard copy submissions are still mandatory.*

And they could have been reined in with incorporation by reference instead of “attached hereto as Exhibit Z.”

Litigators, remember– we don’t get paid by the word.  Translators do.

Remember that FRCP 4 requires service of the summons and the complaint (which includes exhibits).  End of list.  If local rules compel you to serve a Cover Sheet or a judge’s standing orders or a brochure on the court’s mandatory ADR program, then they”’ have to be served.  You cannot control that.  But those exhibits– those pesky exhibits– are well within your control, so keep notice pleading in mind.  FRCP 8 requires a short, plain statement of the claim and the relief granted.  No poetry, no scientific treatise, no voluminous recitation of facts.

Keep it short and save the world.


* Fortunately, the Chinese appreciate technology a bit more than their island neighbors to the east.  China submissions need not be duplicated.  Small favors…

Raja Haji Fisabilillah Monument, Tanjung Pinang, Indonesia… right in the SIJOR Triangle. Achmad Rabin Taim via Wikimedia Commons.

A client emailed me the other day, asking how to serve a foreign defendant.  A pretty common occurrence that prompts either a “take a look at this blog” reply or a short & sweet rundown on what they need to do.  It comes up pretty regularly, and there’s really no good answer for it:  how do you best serve a defendant that isn’t in a Hague country? 

The answer that I quickly dashed off …  “forgive the law school answer here, but it depends“, followed by some brief detail.  One of the double-edged swords of the Hague Service Convention is that (on one hand) it provides certain, specific avenues to service, but it also (on the other hand) frequently limits those avenues.  Sure, a considered analysis is needed for serving defendants in England, France, and Canada.  But Mexico, China, and India… there’s one way to do it—period.

But what of those non-Hague places?  Well, a whole bunch of important questions will determine how to best serve.  For the purpose of illustration, let’s say your defendant is in the SIJORI Growth Triangle—an industrial compact of sorts, between Singapore, Malaysia, and Indonesia.  I pick that area because it’s seen a massive growth rate in recent years, and because all three countries lie outside Hague.  Let’s also say you’re in federal court, just for the sake of a simpler illustration.  Rule 4(f) will govern how you serve regardless of the defendant’s overseas location.

The bunch of questions:

  • Do you have an address for the defendant?  If not, find one.  Seriously—that is the ultimate threshold question.  I can’t help you if you don’t have this critical piece of information—although, I can help you find it.
  • (For rhetorical purposes…) Is the destination country a Hague Service Convention member?  Not in our illustration here, but if it were, the next question would be “do they object to Article 10?”  Set that aside for this discussion.
  • Where are the defendants’ assets?  The absolutely critical point, because if you have to go offshore to enforce a judgment, one of the very first things a foreign court will look at is the manner in which the defendant was served, and if they find it inappropriate, you’re done.  This makes perfect sense—because if they can reject an enforcement action on procedural grounds, they can avoid the tall weeds of substantive law.  [If the defendant has U.S. assets—or even Canadian or British assets—you can rest a bit easier.]
  • Does the defendant speak English?  If it’s an entity doing business in the U.S., it will be presumed competent in English.  But an individual… not so fast.  You may have to translate into Malay or Bahasa or any of a number of different dialects, to ensure that the defendant’s due process rights are respected—regardless of how you serve.  If the defendant isn’t in an English-speaking country, you may have to translate whether it’s an entity or not.  So be sure to keep things brief; federal court is a notice pleading venue, after all.  You don’t get paid by the word, but translators do.
  • How much is this defendant’s involvement really worth?  That will determine whether a more costly method (Letter Rogatory, local counsel…) is warranted, rather than simple mail service, or if the whole analysis is a waste of resources.
  • Is service by mail actually viable?  I’m not a big fan of mail service except in the rarest of circumstances.  It’s usually a bad idea.  But if the defendant has a history of actually allowing its employees to sign for FedEx or UPS deliveries, you’re probably going to be okay.
  • Does the law of the destination state prohibit service by mail?  This one’s doubtful outside the Hague list—but if the other country has a statute or caselaw that forbids mail service, it violates 4(f)(2)(C) [“unless prohibited by the foreign country’s law”].
  • Does the destination state prohibit personal delivery?  This one is also doubtful outside the Hague list, but again– if the other country has a statute or caselaw that forbids mail service, it violates 4(f)(2)(C).  In most civil law jurisdictions (essentially, everywhere that wasn’t once a British colony), service is a sovereign function or reserved to a guild monopoly.  You can’t necessarily just hire a guy to walk up to the defendant and hand him the documents.

It should be apparent that there isn’t an easy answer to the question, so the SIJORI defendant– whether in Singapore or Malaysia or Indonesia– necessitates some anaylsis.  To be sure, this isn’t an exhaustive list—but the ultimate point is that if the defendant doesn’t have accessible assets, you will have to enforce the judgment abroad, so that procedure should always be foremost in your mind when deciding how to serve.

“Just mail it” could be the worst thing you can do.  [Oh, and if you do decide to mail it, do it the right way!]

 

Toledo Courthouse, San Juan, PR. Notice the big blue mailbox with the eagle on it.  Look familiar? (Daderot, via Wikimedia Commons.)

This conversation happens pretty frequently.  At first glance, it might seem like a silly discussion to have, but in reality, most of us don’t have a good handle on the geography or history behind it because we were never really exposed to it in high school.  And who paid attention then, anyway?

Caller:  “Hey, Aaron, how do I serve process in Puerto Rico?”

Me:  You pick up the phone and call a process server on that sunny island.  It’s really that simple.

Caller:  “But don’t I have to follow the Hague?”

Me:  No.

Y’see, Puerto Rico is a territory of the United States, and has been since just after the Spanish-American War.  Think “Remember the Maine,” Teddy Roosevelt, San Juan Hill and all that.  Of course, San Juan Hill is in Cuba and the city of San Juan is in Puerto Rico, but I digress.  Puerto Ricans (or, Boricuas if you’re keen to use the proper term) are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.

For the purpose of procedural requirements in U.S. state courts, Puerto Rico should be viewed in the same manner as a sister state…

  • Divorce case in Georgia, serving a respondent in Saint Paul?  You need a Minnesota process server.
  • Divorce case in Georgia, but serving a respondent in San Juan? You need a Puerto Rico process server.  It’s literally the same analysis.

Things are even clearer in federal court…

  • RICO case in S.D.N.Y., serving a defendant in Miami?  You need a Florida process server– or any non-party adult willing to do the job.
  • RICO case in S.D.N.Y., with a defendant in Mayagüez?  You need a Puerto Rico process server– or any non-party adult willing to do the job.  Again, same analysis.
  • In either case, the defendant is obliged to waive.  And if they refuse without cause?  Mandatory fee shifting under Rule 4(d)(2).*  They’re within a judicial district of the United States (D.P.R., naturally), so… pay up, folks.

Perhaps an even better analogy is this:  think of Puerto Rico in the same way you’d think of the District of Columbia.  No, it’s not a sovereign state, but it might as well be– at least in terms of procedural questions.  People born in DC are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.  (To be sure, both DC and PR are taxed without representation, but that’s an entirely different kettle of fish.)

In short, you don’t need somebody like me to effect service in Puerto Rico pursuant to the Hague Service Convention.  [Unless you’re in Canada– and even then, it’s pretty simple.  Yes, the Convention would govern how you do it, but you can use a process server under Article 10(b) just like you would in Michigan.]


* For a discussion of fee shifting in cases where a foreign defendant refuses to waive, see Serving Overseas: The Carrot and Stick of Waiver.  [That’s foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.  Yes, this is a distinction only a very nerdy lawyer could love.]

 

 

Albert Jankowski, via Wikimedia Commons.

My practice area is a very tight niche, and explaining it to colleagues sometimes means getting into very tall weeds.  Odd conversations tend to follow my CLE lectures.  Or bar association happy hours.  Or tours of farwaway legislative chambers.

I’ll describe what I do, and the colleague I just met will express appreciation for what I illustrated, tell me it’s a really neat niche, and then try to convince herself (or himself) that our practice areas don’t overlap.

Oh, but they do, I promise you.  The banter usually goes something like this:

Sorry, Aaron.  I handle employment law, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that.  I’m glad you enjoyed it.  (Inside my head:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

Hang on a second…  first of all, immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (She’s not kidding, sadly.*)

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

More importantly, though, what I do has direct bearing on your employment practice.  A huge impact, especially in a global economy where operations are directed from far-flung headquarters around the world.  Allow me to illustrate…

Let’s say your client, a gay Latino with a disability, works for a large retail chain that specializes in low-cost furniture and home products.**  Let’s also say that the employer provides a unique shopping experience and wonderfully tasty meatballs that are available to take home from a freezer located right next to a pallet of picture frames and window blinds.  Your client has been harassed for one reason or another, but his pleas to local supervisors and the company’s management team all the way up to the mothership have gone unanswered.  The abuse continues, and in the hope of vindicating the poor fellow’s rights, you take his case.

But who do you sue?  Well, the U.S. subsidiary that runs the store, of course.  The harassers & managers individually.  They’re pretty easy to identify as culprits.  Ah, but what of the off-shore mothership?  The one in Scandinavia, where the meatball was perfected?

Yes, you name the parent company as a defendant, too.  Just because they aren’t here doesn’t mean they aren’t part of the problem.  But now things get interesting, because you have to properly serve the parent company where it resides.  In this hypothetical, let’s “say” it’s headquartered in Sweden (wink wink, nudge nudge).

You’ll have to translate the service documents into Swedish (setting aside the fact that Swedes speak better English that I do).  You’ll have to fill out your USM-94 correctly (that’s a big one– very important, the USM-94).  And you’ll have to wait the three or four months it usually takes to get a proof of service back from Stockholm.  Odds are, you’ll get a call from opposing counsel to discuss settlement before you even receive the proof, but if you don’t even try to properly serve the mothership…

This is Ned Stark.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Disclaimer:  I love Ikea— especially those Swedish meatballs that are finally available in Kansas City.  I know of no situation in which a disabled gay Latino employee has been harassed at an Ikea store, and I imagine that a company born in Sweden would take a very dim view of such treatment of its employees.  Its inclusion here is for illustrative purposes only.

(Start running your geek flags up the pole, folks.)

Transnational Lawyer’s Log, Stardate 23866.2:

An interesting quandary was posed to me recently in an email.

“Aaron, my client was sued in a Klingon court, but was served without a translation into English.  The plaintiff sent the summons by interplanetary mail– and it was only sent in the Klingon language, lacking even a summary of the case in English.  My client is just a yeoman on the USS Intrepid– one of the guys in red shirts who have the sky-high casualty rate– and was involved in a rescue of the inhabitants of the Khitomer outpost attacked by the Romulans.  He doesn’t speak a word of Klingon (the poor kid doesn’t even like Gagh*).  Apparently, a couple of the rescued inhabitants were injured in the operation, so they sued him.  The Klingon court issued a default judgment, and the plaintiffs now seek to enforce the judgment in his home state of Michigan.  Opposing counsel says they didn’t need a translation to make it valid service unless they go through the Central Authority.  Help?”

Well, let’s first establish that Klingon signed onto the Hague Service Convention in the year 2322, twenty-five years before the Khitomer massacre.  They objected to Article 10, and stated a requirement that all Article 5 requests be transmitted along with a full translation into Klingon.**  Michigan has been part of the Convention– via the United States’ ratification– since 1969, well before stardates or the United Federation of Planets were a thing.

Anyway, the young yeoman has some plausible arguments…

  • Number one, I would attack the omission of a translation on a straight-up due process basis.  Technically, opposing counsel is correct in that a translation isn’t required by the U.S. declarations to the Convention– but those declarations also make clear that our courts may choose not to enforce judgments that arise from mailed service that isn’t accompanied by an English translation.
  • Number two, the Klingons don’t allow mail service on their own citizens– they object to Article 10 of the Hague Service Convention in its entirety– so service by mail isn’t valid in either direction.  The poor kid from Michigan can’t serve the Worf family by mail, so nobody from Klingon can do it the other way.
  • Number three (and this is the big one), remember the constitutional standard…   “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. ” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Just because a decision is four hundred years old doesn’t mean we forget about it.  This thing still holds water, even in the 24th century.  And if a defendant doesn’t speak Klingon, the calculation isn’t even remotely reasonable.  It’s laughable.
 Now, I don’t want to go off on a rant here.  I tend to be a bit more Vulcan than my gruff exterior might indicate.  But this is just sloppy lawyering from the Klingon side.  Those guys ought to know better.

 


* Gagh really is more satisfying when eaten live.  It’s a bit disconcerting the first time, but still.  Tasty stuff.

** If you’ve never heard Shakespeare or Dickens in the original Klingon, you’re really missing out.

Image by “Hibino”, via Wikimedia Commons.*

An interesting opinion was handed down this morning in the Middle District of New York—not very earth-shattering, to be sure, but a solid illustration of where lawyers think they know what they’re doing, but really don’t.

A brief rundown of the facts:  the plaintiff is a high school student, Peter B. Parker, who alleged that during a class field trip to The Banner Collection, a prominent midtown museum, he was stung by a rare and poisonous insect in the museum’s animal research facility.  Named as defendants are the Collection’s owner (Crown), and its former Director of Operations, Dr. Diana T. Prince.

On the surface, a fairly straightforward personal injury claim.  Things got more complicated in light of Prince’s departure from New York shortly before the suit was filed, to accept a position as Curator of Antiquities at the new Wayne-Kent Institute in her native Athens.  Crown waived service (as it must under FRCP 4(d)), but Parker’s attorney served Prince at the museum in Greece via FedEx.

When Prince failed to appear, the court granted Parker’s motion for default judgment, and proceeded to trial against the museum.  A jury found that the museum was negligent in allowing a class of high schoolers into a research laboratory, but found that the plaintiff’s own negligence far outweighed that of the museum.

After the verdict, Prince read about the case in a trade magazine circulated to museum curators around the world, and hired counsel in New York to revisit the claim against her.  In their motion to set aside the default, Prince’s lawyers made several arguments, all of which I see as pretty solid.

  • First, Parker presented no proof of actual delivery to Prince herself—only a printout from FedEx indicating that the parcel sent by counsel was left in the Wayne-Kent Institute’s mail room.  Lacking any demonstration that she had received the notice, her attorneys argued, the service attempt should be quashed and the default judgment thrown out.
  • Second, Prince’s lawyers pointed to the FedEx dispatch itself as deficient.  FRCP 4(f)(2)(C)(ii) requires that, where a treaty allows but doesn’t specify a means of notice, service by mail is valid if the Clerk of Court addresses & sends the documents, with a signed delivery receipt required.  Parker’s counsel sent it directly from their office and provided no signature whatsoever.
  • Third, even if Parker had properly observed 4(f)(2)(C)(ii), Greece objects to service by mail under the Hague Service Convention, so the method has no legal effect in the first place.
  • Fourth—and this is the one that really gets me, because it’s just sloppy, lazy lawyering at work—although Prince was the Curator of an Athens-based museum, her office and domicile were in Israel, and no attempt was made to locate and serve her there.  At all.  (In an ironic twist for Parker, Israel doesn’t object to mail service under the Convention!)
Dr. Prince at a press conference in Tel Aviv, announcing her appointment as Wayne-Kent’s Curator of Antiquities.

In the end, the judge set aside the default based solely on Dr. Prince’s first argument, but admonished plaintiff’s counsel in light of the legal deficiencies laid out in the other three… and assessed Prince’s costs to them.  Of course, they could take another bite at the apple, but Prince would still have a couple of fancy Latin terms at her disposal: res judicata, respondeat superior

Again, this all comes down to very sloppy lawyering by plaintiff’s counsel.  Truly, a simple Google search would have told them that, while the defendant was born in Greece, she is an Israeli citizen– she even served two years in the IDF.  Had they exercised even a modicum of diligence, they could have served her properly.

Moreover, this case illustrates the importance of client-vetting.  These attorneys should have known that their plaintiff, although an orphan, was little more than a whiny kid who didn’t just mitigate his damages– he made a fortune off of them.  Media appearances alone have made him millions in the few years since the injury; perhaps Crown has a cause of action against him for unjust enrichment?


* The image above is actually the Museum of Modern Art in New York, which Crown’s owner purchased in 1998 and renamed for an old friend, Dr. Bruce Banner.  The facility expanded beyond art and into natural history research shortly thereafter.

 

Bermuda Tourism Authority, at gotobermuda.com. No, seriously, go to Bermuda. And take me with you.

We ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination; this could be a frightening concept if, like me (at the age of eight), you believe in the mythology surrounding the Bermuda Triangle.

Serving process in Bermuda is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter.  The tiny island is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.*  A fair number of U.S. tourists spend time in Bermuda, just a few hundred miles off North Carolina, and a whole bunch of financial houses are chartered there thanks to a highly favorable tax structure.  That means a fair amount of U.S. litigation involves entities on the tiny island.

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 effected in Bermuda:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • 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 three or four months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

Pretty straightforward stuff in Bermuda.  For more insight, the UK’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.  And I’m serious– when you go to Bermuda, take me with you.

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.


* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text.  If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States.  The methods described there aren’t even part of the agreement.

Federal Reserve image.

My practice area is a pretty goofy little niche, and explaining it to colleagues gets me into the occasional comedy of errors.  Really, odd conversations tend to follow my CLE lectures.

Or bar association happy hours.

Or tours of farwaway legislative chambers.

It happens all the time.  I’ll mention what I do, and the colleague I just met will express appreciation for what I described, tell me it’s a really neat niche, and then try to convince himself (or herself) that our practice areas don’t overlap.

I’m here to tell you that, yes, they do.  The banter usually goes something like this:

Sorry, Aaron.  I handle creditors’ rights, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that, Stewie.  I’m glad you enjoyed it.  (But inside:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

More importantly, though, what I do has direct bearing on your debt collection practice.  A huge impact, especially in places where lots of foreign citizens borrow from local and national lenders.  Allow me to illustrate…

Let’s say your client is a bank or a mortgage outfit.  Let’s also say they’re in Branson, Missouri (or pick just about any in-demand resort area, whether in the Ozarks or out on the coast).  They specialize in lending to folks who want a vacation property on a picturesque waterfront.  The bank loans a huge chunk of money to a Ukrainian fellow who just can’t get enough of the Baldknobbers (it’s a thing in southwest Missouri… just trust me) and the comedic stylings of Yakov Smirnoff.  It seems this guy’s wife fell in love with a beautiful six bedroom cabin on Table Rock Lake, so they cashed in a few savings bonds and bought the place.

Thirteen months into the mortgage, Mrs. Ukrainian Lady decides that Kiev is more to her liking than Branson, so the couple hightails it east toward their homeland.  They stop making mortgage payments, and a year later, your client wants to cut its losses.  What do you do?

Well, the first thing you have to do is get a foreclosure suit filed (this illustration really could be any kind of collection action, but if I can promote tourism in my state with some down-home flavor, all the better).  All Missouri counties now have e-filing, so that’s not a tough undertaking.

Next, you get the court to issue a summons to the borrower.  The clerk is happy to e-mail you the thing via CaseNet.

And now things get interesting.  Service of process, you say?

Sure, it’s an in rem action, but you can’t just nail the summons to the front door of the cabin and say you’ve served process.  You also can’t serve by publication until you’ve made a reasonable effort to serve personally.  Your defendant has gone back to Ukraine, and you have to at least try to serve him there, because your client didn’t think to have him designate an agent for service in the mortgage agreement.  You find out that Ukraine is party to the Hague Service Convention, which is mandatory doctrine if you’re serving a defendant in a country that’s signed onto it.  Ukraine objects to service by mail, so that option’s off the table, and your only remaining choice is a request to Ukraine’s Hague Central Authority.

Fortunately, the Ukrainians are pretty liberal about the language issue, so you may not have to shell out a thousand bucks for a translation.  And they get the job done when you ask nicely (unlike their Russian counterparts).  But you still have to fill out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

Then you sit and wait, while your client sits on a mortgage they can’t foreclose for at least six more months.  And if you don’t even try to get him served, you’ll have a tough time getting the judge to proceed without that indispensable defendant.

This is Ned Stark.

 


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.