Service of Process Abroad

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PAY ATTENTION TO WHAT THIS WOMAN SAYS.

Yet another one popped up on the old radar (Google news alerts) yesterday… a National Law Review article highlighted Victaulic Company v. Allied Rubber & Gasket Co., Inc. in S.D. Cal., but the author’s conclusion was far too optimistic for plaintiffs seeking a way around the Hague Service Convention.  The court there held that service by electronic means on a Chinese defendant was perfectly acceptable under Rule 4(f)(3) because electronic service isn’t prohibited by international agreement.  My (internal scream) response to that:  WRONG.

Wrong wrong wrong wrong wrong.

(You should sense a rant coming.)Continue Reading NO, 4(f)(3) is NOT co-equal to Hague channels!

A quiet passageway in Spoleto, Umbria.  I snapped this while gallivanting across Italy with some colleagues on a CLE junket.  The best way to earn your hours, folks.

One immutable truth looms over everything I do: if you can’t tell me where your defendant is, I can’t get him served for you.*

I couldn’t be more serious– “where?” is the most important question I ever ask a client.  There are precisely four variations on the answers. 
Continue Reading Good, bad, or unknown addresses… and the Hague Service Convention.

Pernillan — via Wikimedia Commons.

And most of them have been all along.

Aside from a few notable blips (such as Italy and Spain, which bore the earliest surge of Covid-19 cases in the west, and India, which has been pummeled), Hague Central Authorities around the world kept doing the job even through lockdowns and quarantines.  Commentary that I still get from clients and prospective clients is simply baffling.

“I had a process server tell me that Central Authorities are closed and that nobody’s doing anything.”

(So Aaron shakes his head.  Again.)

No.  Just… no.

For starters, go beyond your process server and talk to actual lawyers who deal with cross-border procedure daily. 
Continue Reading YES. THEY’RE STILL OPEN.

I give you… phở, (pronounced FUH, as in “fun”)  the most amazing bowl of soup in the solar system and, coincidentally, the national dish of Vietnam. North or south, it’s amazing.  No, really– love yourself enough to eat this stuff on the regular.  Codename5281 via Wikimedia Commons.

For

…

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Towfiqu barbhuiya, Unsplash

[Author’s note: see Prof. Bill Dodge’s excellent– and more academic– take on this topic in “The Impossibility of Schrödinger Service” over at the Transnational Litigation Blog, May 7, 2025.  The cat can be dead, or it can be alive.  It can’t be both.]

Every once in a while, when a colleague is stymied by limitations to serving an offshore defendant, the thought comes to mind that “hey, I might try to get leave of court to serve the defendant’s U.S. counsel.”  It’s a great idea, and if the judge signs off on it, I don’t see how it could be unreasonable under the Mullane standard.  Getting to that point, though, is often done in an entirely wrong way: using FRCP Rule 4(f)(3) as a basis for the motion.

Why is that entirely wrong?  Because 4(f)(3) doesn’t apply if service doesn’t take place abroad. 
Continue Reading Service on U.S. counsel doesn’t arise from Rule 4(f)(3).

User Beneffin via Wikimedia Commons

For most lawyers human beings, it’s been a goofy three months (we’re now well into the Covid-19 pandemic).  Amid the quarantine, I’ve been incredibly fortunate to see my firm’s workload go up, but millions of my fellow Americans, including a whole bunch of lawyers, have seen their income and savings vaporize in a matter of hours.  Even as I’ve gotten busier, I’ve begun to more diligently follow the advice of one of my favorite law professors, who insisted that a good attorney absolutely must read the news, religiously.  I quit being a newshound some time ago, but lately, that has come to seem more irresponsible every day.Continue Reading Preference payments and service abroad

In a single day last week, Week Ten of America’s Covid-19 quarantine, I fielded essentially the same oddly segmented inquiry from three different lawyers across the country.  A rather disconcerting inquiry, to say the least.

“Hey, Aaron.  I’ve got an overseas defendant to serve.  I’ve talked to some process servers who tell me that you can’t personally serve anybody overseas right now, so I should just serve by mail.”

When I interject to tell them that, no, that’s a bad idea…

“But they say the Water Splash decision makes it okay.  That’s right, isn’t it?”

Oh, where to begin?  No, no, and no.

Continue Reading No, Water Splash isn’t a gift to litigators.

“The Sword of Damocles”, Richard Westall (English, 1765-1836)

Every once in a while, a colleague will call me with a story similar to this one:

“A client just walked into my office three days ago with what looks to be a rock-solid case.  We can establish duty, breach, causation, and damages* without a whole lot of difficulty, but the defendants are in Beijing and Toronto.  The statute of limitation runs next week, so we’ve GOT to get them served before then or we’re out of luck.”

Relax, I say. 
Continue Reading Time to file versus time to serve

No, not that kind of wave.                                               (Alvesgaspar via Wikimedia Commons)

Civil defendants in federal court are obliged to waive service.  All of them, with the notable exception of various governments.  I give you Rule 4(d)(1):

An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.*

(Emphasis added.)  Seems pretty simple to me. 
Continue Reading Rule 4(d) waivers and fee shifting