[Update 2025: Most CPAP suits nowadays are in MDL status and thus subject to mandatory acceptance by defense counsel. Still, this serves as a primer, and it’s still specifically applicable to state court actions.]
A real world illustration has become fairly frequent of late… but it needs a bit of personal background.
A huge chunk of my practice arises from inquiries lawyers send through this blog– and it stands to reason. Look over to the right and you’ll see our contact information (scroll all the way to the bottom if you’re on a phone or tablet). In a perfect world, we’ll get a chance to talk on the phone, bat around ideas, and collectively grumble about the utter silliness that is the Langdellian method. Inevitably, we ask the following questions, whether by phone or email, because “hey, Aaron, what do you charge to serve a defendant overseas?” just doesn’t give me enough to go on.
Rather than give the trite lawyer answer “it depends,” I ask pretty much the same questions every time. The answers vary, of course, and often lead to more questions and ultimately, the various conclusions that I can offer as recommended next steps.
An interesting quandary pops up fairly regularly, and I find myself explaining the issue so frequently that it warrants a post. [TL;DR… in the U.S., corporations and other entities created pursuant to statute have registered agents. Elsewhere– and I mean just about everywhere else– the same types of entities only have registered addresses. You don’t have to worry about whether you’ve designated the right individual officer because there isn’t one.]
Two or three times a week, I’ll get an email or phone call from a civilian (ie: somebody wise enough to have avoided taking a bar exam) seeking help with a cross-border issue. The majority are pro se spouses (or ex-spouses) who need help serving a divorce action or petition to modify custody or child support. Quite often, it’s a business owner in conflict with an overseas supplier. Occasionally, it’s an injured party seeking damages from a foreign* manufacturer or visiting driver from abroad.
In each and every case, I tell the caller, “have your attorney get in touch with me and I’ll be happy to help.” Continue Reading Don’t fear cross-border doctrine… just call in some help.
The single, most important piece of information in serving a defendant is his/her/its location. Without the “where,” nothing else matters. Domestic defendants, foreign defendants, U.S. citizens living abroad… everything boils down to location. Now, in most places, just saying “I need to serve a defendant in Japan” is perfectly sufficient. The Hague Service Convention applies. There is but a single way to get the job done. And there’s no question about whether translation is required. Likewise Mexico, Turkey, Korea, and the like. But there are a few places around the globe that require a bit more inquiry to determine options and requirements. This begins a series to look at particular places that aren’t quite so simple, for better or for worse.
Continue Reading “Where?” is the most important question: Southeastern China
Billy Joel released The Stranger album in 1977, just as I was starting the first grade. It wasn’t until I was in high school that this album truly became one of my favorites, and it remains so decades later. Not least because the varied tracks on it pop up in conversation so frequently.
The best thing a potential client could ever say to me– aside from “shut up and take my money”– is “yeah, we could probably figure this out on our own, but we’d rather get it right the first time.” Cue the soundtrack of my youth.
It’s applicable in Hague Service Convention usage because, even though you might get a second bite at the apple following a curable defect, you may not know there’s a problem until a year or two down the road. That makes for irate clients and grumpy judges.
Continue Reading Get it right the first time– that’s the main thing.
Seriously. It doesn’t exist.
At least, not in the common law world. Continue Reading There is no such thing as informal service.
[Details have been changed to protect the innocent. Some variant of this story happens routinely— at least every couple of months.]
A few weeks ago, I received a Hague Certificate following a request that I’d sent on a client’s behalf to a foreign Central Authority. Essentially, it said, hey, Aaron, thanks for playing– we served your defendant on February 30th, so go get ’em. My client filed it in fairly short order and all seemed to be well.*
Opposing Counsel filed a responsive motion, asking the court to reject the proof provided by the foreign Central Authority, insisting that only an affidavit would do, and that the Hague Certificate that we’d filed was insufficient under the Federal Rules of Civil Procedure. O.C. cited Rule 4(l)(1), which is crystal clear that an affidavit is required to demonstrate proper service.
(l) Proving Service.
(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.
It’s crystal clear if you stop reading there.
Continue Reading Hague Service Convention proof supersedes local rules.
“The defendant works at…”
Hmm. Do you happen to have a home address?
“No, just his office.”
Let’s hope he’s there. And that we can get in the door…
That exchange happens between lawyers and process servers daily. And it’s a challenge, because defendants can’t be served by substitution at their place of business.* Continue Reading Home address… just get it (if you can).
Y’all, if you know you’re going to be removed, just initiate the case in federal court to begin with. It’ll save everybody involved a whole bunch of time and headache.
Lots of plaintiffs’ lawyers gasp when I say that. They look at me like I have three heads.
I certainly understand why they react that way. Continue Reading Go federal at the outset.
