A client emailed me recently with a question that she already knew the answer to, but needed a little affirmation regardless. The answer to this one is so stunningly simple as to warrant a “hey, am I crazy here, or what?” message, sort of like trying to remember if your wife likes creamy or crunchy peanut butter. No, really, I should remember, but self-doubt creeps in and jumbles the whole adventure.
Her perfectly reasonable question, paraphrased:
I have an offshore corporation to serve in a federal case, but the company’s president is coming to the States, so I can just serve him here, right? I heard something about that the first day of law school– somebody served on a plane in U.S. airspace, or some such?
I responded, “Nope. You’re not crazy. If the forum court’s rules allow service on an officer within the United States, you’re gold– no matter where the corporation is domiciled*– and the Hague Service Convention is rendered inapplicable. Federal rules do allow it, and I imagine the lion’s share of state rules (if not all of them) do likewise.”
Specifically, I give you a quick rundown of FRCP 4(h)…
Rule 4. Summons
(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or
[Emphasis added. As are all emphases indicated in further rule cites. Don’t be silly.]
“But wait!” says defense counsel, who hasn’t really thought the matter through. “This is a (German, Chinese, Australian… pick one) company. You have to serve it in its home country, and that means you have to go by Hague rules.”
Well, no, it doesn’t. Not by a long shot.
Rule 4(h) goes on…
(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).
And, proceeding to 4(f)(1)…
(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:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
Okay, fine. The Hague Service Convention applies any time you’re serving in a Hague country. But note the 800-pound gorilla in the room: if you’re serving the defendant here in the U.S., you’re not serving at a place “not within any judicial district of the United States” (forgive the double-negative).
You’re serving IN THE UNITED STATES, so the Hague Service Convention… DOES. NOT. APPLY.
By its own terms (Article 1):
The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.
If you’re tagging the company president on a Dreamliner** from LAX to O’Hare, you aren’t serving abroad… and there’s no “occasion to transmit” anything.
Sorry, defense-counsel-who-hasn’t-really-thought-the-matter-through. Your client is on the hook.
* Remember– domicile goes to jurisdiction more than manner of service. Although the two concepts are closely related, the Venn Diagram only overlaps a smidge.
** The Boeing 787 is my favorite airliner ever, which is saying something, given that I flew on a PanAm 747 when I was five (that was trippy). The Dreamliner is quiet, it’s comfortable, it’s humidified! I also have a good friend who is a mechanic at a major American airline (you could just capitalize that last word and add an S to figure out which one)… he hates the “Plastic Princess.” A maintenance headache, apparently. Still, a wonderful flight experience from the passenger’s perspective. And job security for mechanics.