Search results for: how to serve process in

M198, Iraq 2006. U.S. Army photo.
M198, Iraq 2006. U.S. Army photo.

Channeling my inner Army Brat here… when you grow up inside the fortress, your brain necessarily uses combat analogies even if the only uniform you ever wore was in the Boy Scouts.  Bear with me.

Before any ground assault, whether it involves footsoldiers or mechanized troops in a gun truck, an invading army softens up the enemy with a barrage of artillery fire.  They don’t just send in the guys carrying rifles.  Likewise, a defending army can do significant damage if it can lay down a decent amount of ordnance on the invaders.  They don’t just let the other guys walk right up to the gate of the compound and then shoot at them.  [Air support helps, of course, but I’m sticking to the cannon analogy here because my best friend in college paid for his degree in part because he was in an Army Reserve artillery unit.  And because howitzers are cool.]

A lawsuit is like a ground assault, and the first volley of fire comes in the form of a summons.  That summons, as we all know, must be served in a manner that is reasonably calculated to put the defendant on notice of the claim against him (those are the magic words, straight out of Mullane and FRCP 4(f)).  The rules are awfully particular when the defendant is overseas.

Yet, plaintiffs’ lawyers often go it alone, falsely confident that they know how to hit the target with the right projectile, if you’ll pardon my already-tortured analogy.  After all, it’s just a matter of filling out some paperwork, right?  I can just hire a process server, right?  The treaty says I can mail it, right?

No.  Maybe.  Not necessarily.

Don’t assume that actual notice constitutes valid notice.

Shortly after I launched my own practice in 2016, I posted my thought that defense counsel should always question the validity of Hague service requests.  I still think that, and it bears repeating, because plaintiffs get it wrong fairly often, and if nobody raises an eyebrow (neither the judge nor the defense), the case proceeds even though it shouldn’t.

Now, bear in mind—the vast majority of what I do is on behalf of plaintiffs, in every manner of case from divorce to personal injury to breach of contract… even adversarial proceedings in bankruptcy.  Advising defendants to put up a fight—indeed, helping them to put up a fight—seems awfully counter-intuitive.  But the fact is, if a plaintiff wins because nobody in the room knows any better, bad law gets made, and the plaintiff wins a potentially unenforceable judgment.

If you’re defense counsel, be inquisitive.  Don’t just let the other fellow’s troops march up to your foxhole.  Lay down a field of fire.  Investigate the manner in which your client was served and don’t assume that actual notice constitutes valid notice, because they’re not the same animal.  Of course, it may not be worth your while to fight a 12(b)(5) motion (even when you get the case kicked, if it’s dismissed without prejudice, the plaintiff can just start over and do it the right way).  But if the plaintiff hasn’t even attempted to do it properly, you’ll have a pretty good argument to get rid of the case.

M777 Light Towed Howitzer. Jonathan Mallard via Wikimedia Commons.
M777 Light Towed Howitzer. Jonathan Mallard via Wikimedia Commons.

If you’re plaintiff’s counsel, remember the invasion analogy.  Call in an artillery strike to make sure your first procedural step doesn’t get your case kicked or—worse—render your judgment unenforceable outside the United States.

In short, don’t DIY your service abroad—if self-help is a bad idea when you need to serve in Paris, Texas, how is it a good idea to handle it yourself in Paris, France?

Altstadt, Düsseldorf. Image by qwesy qwesy, via Wikimedia Commons.
Altstadt, Düsseldorf. Image by “qwesy qwesy” via Wikimedia Commons.

Serving process abroad touches virtually every aspect of civil litigation.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I handle creditors’s rights cases, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of that Ned Stark guy into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.
This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.  But he appears in all of my CLE decks.

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.)

Second of all (setting my incredulity aside), let’s say you do handle collections exclusively, no visa applications ever.  What if you’re pursuing a German debtor?  (Let’s call him Dieter just for fun.)

What if Dieter bought a car financed by your client, wrecked it, and moved back to Düsseldorf the next day?  Dieter’s return to the fatherland has thrown a Mjölnir-sized monkey wrench into your otherwise straightforward plan.  You still have to initiate the proceedings, and that’s not going to be as easy as just tossing the complaint into a FedEx envelope and jetting it off to the address listed on Dieter’s MySpace page.  Serving process in Germany requires a very particular procedure.

Or what if the debtor is not Dieter from Dusseldorf– let’s say it’s Stan the soldier from Sacramento– and the Army has just sent him to Stuttgart for three years?  Stan’s status as a soldier serving overseas* makes things even more complicated than if you were serving a German citizen.

Woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (you might win a default, but good luck enforcing it… and good luck overcoming the malpractice complaint).  And it is easily avoided if the litigant and the attorney are patient and understand what requirements they must observe beyond just the rules of the venue court.

The point here is that serving process abroad touches virtually every aspect of civil litigation, and if the plaintiff doesn’t do it properly…

THIS is Ned Stark.
THIS is Ned Stark.

* Hat tip to Monty Python.  Don’t practice your alliteration on me.

Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.
Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.

I called it.  It wasn’t a really stretch, but I was confident that this would be at least a 7-vote decision.  In Water Splash v. Menon, the U.S. Supreme Court this morning held unanimously (8-0, sans Gorsuch) that mail service is permissible under the Article 10(a) of the Hague Service Convention, overturning the Texas Court of Appeals and, along with it, the 8th and 5th Circuits in Bankston and Nuovo Pignone, SpA.  At long last, there’s sense in the jurisprudence surrounding Article 10(a)– for years, I’ve thought the 8th & 5th were flat wrong in their approach, clinging to a very tenuous thread of logic.  Essentially, they focused on the drafters’ use of the word “send”, rather than “serve” in 10(a) and said that a drafting error rendered the intent questionable.  It’s always seemed silly to me, frankly; why in the hell would the drafters have put it in a Service Convention if they didn’t mean it was okay to serve that way?  Justice Alito said as much for the Court, though far more diplomatically.

Yet, I still hold to the same assertion:  just because service abroad by mail is legally valid, that doesn’t mean you should do it.  It’s almost always a horribly bad idea, if for no other reason, because proving proper delivery is a sketchy undertaking.  Plus that, it has to be valid under both the venue’s rules and the destination state’s declaration to the Convention.

Sorry, but it’s frequently unavailable to begin with (read: China, Germany, India, Mexico), and it’s usually is not the way to go anyway.  Article 5 is usually the safest option for serving defendants in Hague countries, but it’s not necessarily the most practical.  Article 10(b)/(c), where available, is usually quicker– and sometimes cheaper.  The choice of which method is most appropriate for any situation requires guidance.  Don’t just DIY the decision.

Richard Burton & Elizabeth Taylor, "Divorce His, Divorce Hers", 1973. Public domain (image pre-1977 without assertion of copyright).
Richard Burton & Elizabeth Taylor, “Divorce His, Divorce Hers”, 1973.  Public domain (image pre-1977 without assertion of copyright).

Serving process abroad touches virtually every aspect of civil litigation.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I handle divorces, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of that Ned Stark guy into your slide deck!

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

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.)

Second of all (setting my incredulity aside), let’s say you do handle divorces exclusively, no visa applications ever.  What if your client’s soon-to-be ex-wife is Chinese?  What if she threw her hands up one day and in a fit of pique yelled at him “that’s it!  I’m going home to Beijing!” before she ran home to Mom and Pop?  Your case is only simple on its face.  Maybe they don’t have kids.  Maybe they don’t have property to fight over.  Maybe the only issue before the court is whether to dissolve the marriage.

You still have to initiate the proceedings.  And that’s not going to be as easy as just tossing the petition into a FedEx envelope and jetting it off to her parent’s house.  Serving process in China requires a very particular procedure.  If the defendant (or respondent— however the other spouse is referred to in the petition) is in the military, it can be even more complicated.

And woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (see more here).  And it is easily avoided if the litigant and the attorney are patient and understand what requirements they must observe beyond just the rules of the venue court.

The point here is that serving process abroad touches virtually every aspect of civil litigation, and if the plaintiff doesn’t do it properly…

THIS is Ned Stark.
THIS is Ned Stark.

 

JLPC via Wikimedia Commons.
JLPC via Wikimedia Commons.

To most American lawyers, service pursuant to the Hague Service Convention means filling out an inscrutable Article 5 request form, putting a jumble of paperwork into decipherable order, and mailing it off into some black hole bureaucracy in a far off land.  In some cases, that’s exactly what it amounts to, and this is why I have a practice.  Really.

But much of the time, a litigant is better off using Article 10(b) channels to effect service.  They’re no less effective, they’re usually quite a bit quicker than the Article 5 channel, and often do not cost much more to use than that inscrutable form.  In France, Luxembourg, Belgium, and even Québec, the Huissier de Justice is the route to speedy and effective service.  The counterpart to the huissier in the Netherlands is the gerechtsdeurwaarder, and they serve a substantially similar function (I use the term huissier from here to apply to both– merely for simplicity).*

For reference:

Article 10.  Provided the State of destination does not object, the present Convention shall not interfere with (…)  b)  the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination (…) .

In short, a lawyer in the US can directly hire a huissier or gerechtsdeurwaarder to serve process in countries that do not object to Article 10.  Applying to the Central Authority under Article 5 is superfluous… you may as well just cut out the middleman, because the Central Authority is going to hand the request off to a random bailiff for execution anyway.

But beyond speed, what is the benefit?  Simply put, control.  If you hire a judicial officer directly, you determine who handles the documents, you reduce the number of hands they pass through (and thus reduce the chance for error), and you can prevent ineffective service because the person working the job doesn’t know what law you need to apply.  I’ll elaborate momentarily, after a bit of explanation of what a huissier actually is.

First and foremost, a huissier is a lawyer– a fully trained attorney who has chosen a specific career track in a specialized field.  In civil law jurisdictions, lawyers don’t just choose between transactional and trial work or between criminal and civil.  Very early in their career progression (perhaps even while in law school), they’re tracked.  Some become administrators, some transactional attorneys, trial lawyers– even judges– very soon after law school… and some choose the huissier track.  Depending on the country, huissiers may have a statutory monopoly on service of process functions, the drafting of conveyances & deeds, and the execution of judgments (think seizures, like walking into a bank and pulling all the money out of a losing defendant’s account).**

If an American lawyer can directly hire one of these folks to serve, we aren’t always subject to the luck of the draw.  It’s usually all up to us.

  • In the Netherlands, we can avoid the erroneous application of an EU requirement that ALL pleadings be translated into Dutch (they don’t necessarily have to be).
  • We can actually communicate with the person serving process to ask that they not serve a dissolution action on a respondent by handing the documents to the petitioner’s teenage son (this actually happened… “um, Mom, are you and Dad getting a divorce?”).
  • Fortunately, service by huissier is not substantially more costly than going through a Central Authority.  In many cases, it is my primary recommendation, and in some cases, my only recommendation.
They're definitely not this creepy guy.
They’re definitely not this creepy guy.

Don’t let the fancy titles fool you– these folks are just lawyers, like you and me.  And for the most part, they are incredibly gracious, cordial, and professional.

* Germany, Austria, and German-speaking Switzerland likewise use deurwaarders (in francophone Switzerland… huissiers), but those countries object to Article 10 entirely, so discussion here omits them.  I include Austria in the Article 10 objection on an anticipatory basis– the HSC hasn’t entered force there yet, but I am 99.44% certain the Austrians will join their closest neighbors in objecting to Article 10.

** Bailiffs can also play a special role in mitigating the defendant’s stress, especially in high conflict family law cases.  They’re often the defendant’s only resource for guidance.  At that, however, if the bailiff is the wrong sort of person, their lack of compassion can make matters worse, so choose carefully.  See the second bullet point above– I once had a German bailiff (who I could not select) serve divorce papers on a wife by handing them to the couple’s 14 year-old son… not exactly tactful, in my estimation.

The Straight of Dover, which is about to get a bit wider. NASA photo.
The Straight of Dover, which is about to get a bit wider. NASA photo, via Wikimedia Commons.

A frequent scenario of late (I really do get this frequently):  I’ve just met another lawyer at…

  • an alumni association event,
  • dinner at a friend’s place,
  • in the lobby of the Kauffman Center during a Kansas City Symphony performance…

Hi, I’m (insert lawyer’s name here).  

Nice to meet you, I’m Aaron.  Tell me about your practice.

Oh, I handle (insert practice area here).  How about you?

Well, I handle all the goofy procedures in litigation that cross borders.  Primarily Hague Convention issues (and there are a whole bunch of those).

Hmmm.  That’s really interesting.  How do you think Brexit is going to affect what you do?

An insightful question.  And on the surface, it might seem pretty monumental– Brexit is rippling through the global economy like an Oklahoma tremor ripples through Kansas City.*  That is to say, it’s been relatively subtle so far– but we’re bracing for the Big One.

Still, my answer to the lawyer I’ve just met is usually, “it won’t.”  So the PM has called a snap election.  Big deal.

The sort of issues I handle– service of process abroad, foreign evidence compulsion, overseas enforcement of judgments– aren’t really a part of the European Union framework.  To be sure, if my clients were in the UK or on the continent there might be some shakeup, but I honestly don’t foresee the needle moving much in my line of work over the next two years (the timeframe for the UK’s invocation of Rome Article 50).  At least, not on the procedural end of things, and pretty much everything I do is procedural.

  • Service of US process will continue to be handled the same way across Europe– including the UK.
  • You still won’t be able to serve a subpoena with any teeth.  Full stop.
  • Your judgment will still have to be recognized and enforced by a foreign court before you can march into the defendant’s foreign bank and drain his account.
  • Eddie Izzard** will still perform in Paris and in Vienna.  He’ll just have his ID checked by a French cop before he gets on the Eurostar at St. Pancras.
  • And we yanks will still have to show a passport when we land at Heathrow or DeGaulle or Fiumicino or Schipol.  (At least, I hope it stays that simple.  Regardless… not a Brexit thing for us.)

Of course, there may be some longer term effects.  The absence of a free trade agreement may prompt Fiat Chrysler Automobiles, N.V. to pull its headquarters from London (Dodge boys might have more fun in Amsterdam?).  Other primarily continental outfits may do likewise.  This means it won’t be so simple to serve them (translation, possible Article 5 exclusivity, etc.).

More broadly, the EU may look more toward the US as a source for products and services that were previously offered by Britons and British companies (financial services come to mind as the primary industry) on a lower cost basis.  Those same Britons will look more to the US as a ripe market.  Likewise, the EU may look to the US in the same way.  Essentially, both the UK and the EU will pivot to the US as a partner.  This means that, as transatlantic commercial activity grows, so too will transatlantic litigation.

It all remains to be seen.

eddieizzard* Oklahoma and Kansas City are inextricably linked, thanks to Rogers and Hammerstein.  Everything’s like a dream in Kansas City.

** Holy executive transvestites, Batman!  This guy is funny.  If you get a chance to see him live, DO IT.  (My favorite Eddie Izzard bit is his riff on Darth Vader visiting the cafeteria on the Death Star.  Caution… Darth drops an F-bomb or two.)

 

Brandenburg Gate, Ondřej Žváček via Wikimedia Commons.
Brandenburg Gate, Ondřej Žváček via Wikimedia Commons.

An interesting Catch-22 sometimes faces U.S. lawyers when they try to serve a complaint with punitive damages on a German defendant.  Germany’s public policy disdains punitive damages– indeed, until recently (that is, until the last couple of decades), they didn’t even conceptualize punitives in their legal thought process.  But an increase in American litigation has made the idea part of the zeitgeist, as it were.

The scenario:  lawyer files product liability suit against U.S. company and its German parent.  Suit is fairly straightforward and routine, including actual and punitive damages, no different than a garden-variety personal injury case.  Lawyer knows that she has to properly serve the German company, so she calls me or somebody like me, and we get a Hague request submitted to the appropriate German authority.  Three weeks later, a letter arrives that says “sorry, R.A.* Lukken, but we will not serve these documents because Missouri has a split-recovery statute.”

“Huh?” she and I both say in response.

I’ve seen rejections that include punitive damages, and I’ve seen requests including punitives make it through the process without a second glance.  Ted Folkman has addressed the issue many times at Letters Blogatory.  It was in connecting the dots between a Ted post and a recent split recovery rejection that I realized… in order to get around the problem, a bit of nuance illustrates why the Germans reject some, but  not all, punitive damage requests.  I leave the theoretical/jurisprudential analysis to Ted– this is about the nuts & bolts of how to get around the problem.

It is not that Germany disdains punitive damages.  Truly, such a rejection would violate the terms of the Hague Service Convention, which sets out two bases for rejection:  (1) you screwed up your paperwork,  and (2) the request somehow violates the destination state’s national sovereignty or security.  End of list.

  • “Sorry, but we think we have jurisdiction here”… not a valid basis for rejection.
  • “What you say they did?  Yeah, that’s not a bad thing, so we’re not going to serve this.”  Also not a valid basis for rejection.
  • “That company is owned by the state.”  Not technically valid, and the Germans will reluctantly serve as requested (although I’ve seen these get rejected, too).

So the “we won’t serve a complaint that includes punitive damages” is, on its face, also not a valid reason for rejection.  They will reluctantly serve those.  The question doesn’t turn so much on the scope of the verdict as on cui bono— who benefits– from it.

Who benefits from split recovery?  The state— usually to the detriment of the plaintiff and often of the lawyers who bore the cost to bring the matter to trial (bravo to Utah, which recently found split recovery unconstitutional).  This makes the civil suit seem not solely like a civil suit, but one with an element of criminal or (at least) administrative retribution to it.  And that is where foreign governments find the easiest basis to reject.  If it’s a criminal or administrative proceeding– thus leading to a fine or penalty, rather than compensation for a tort victim– it falls outside the scope of the Hague Service Convention.  Why?  Because the Convention pertains to Civil or Commercial Matters.

Simply put, in the German equation:

  1. This complaint will not only benefit the plaintiff, but the state of Missouri (or one of 9 others) as well.
  2. Such a retributive penalty falls outside the scope of a civil or commercial lawsuit.
  3. As it falls outside that scope, it also falls outside the Convention.
  4. Result: we aren’t going to serve it via the Hague procedure.**

The net result?  The nuts & bolts way around the problem?  Don’t worry about Hague channel rejection.  Don’t just jump to self-help, either, but know that with the right motion, you should be able to serve by an alternative method under the regular rules of the court.  That actually makes things easier in some cases.

Just make sure you have a plan for enforcing the judgment down the road.

*  R.A. stands for Rechtsanwalt— attorney– and lawyers are addressed as such.  In fact, we’re addressed formally in lots of places.  (R.A. stood for Resident Assistant during my sophomore year in college, but that was long ago and far away.)

** Egypt, historically, has rejected service requests for divorce petitions on similar grounds, determining that divorce is a family and religious law issue rather than a civil one.  We make no such distinction, but they do.  Since the fall of the Mubarak regime, Egypt’s judiciary has waffled a bit– and has allowed a few dissolutions to get through.

Yale Law Library... where the rules live. PENG Yanan via Wikimedia Commons.
Yale Law Library… where the rules live.  PENG Yanan via Wikimedia Commons.

An interesting and seemingly Hague-related case came to light this week, and it came specifically to my attention thanks to the NorCal IP Blog by the guys at Orrick Herrington.*   As it turns out, it isn’t a Hague case after all.  It’s a straight-up civil procedure question.

The case, in a nutshell:  Japanese company, Godo Kaisha IP Bridge 1 (Godo for our purposes here, but the judge calls them IPB), sues American company Xilinx  (ZY-links?) for patent infringement in E.D. Tex., the current hotbed of IP litigation.

Xilinx, as luck would have it, sued Godo for patent infringement in N.D. Cal.– the mother ship of IP litigation– the very next day, and asked the judge for leave to serve Godo via Godo’s U.S. counsel.  Motion granted.

The judge’s order, as you can see here, explores the interplay of Rule 4(f)(3) and the Hague Service Convention, but it misses a critical point in the analysis:  the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  It’s right there in Article 1.

If you can serve a foreign defendant in the U.S. (whether via a subsidiary or via its U.S. counsel), the Hague Service Convention is inapplicable.  Utterly irrelevant.  Moot.

But even more critical… so is Rule 4(f).**  It only applies to service at a place outside the U.S., not here at home.  If service is to be effective via a foreigner’s U.S. counsel, it must be pursuant to Rule 4(h)(1)(b)… that is, “by delivering a copy of the summons and of the complaint to (…) any other agent authorized by appointment or by law to receive service of process.”

The salient question, which I avoid exploring here, is whether U.S. counsel can be appointed by the judge hearing the case.  Ultimately, this shouldn’t even have been a Hague question– it should have been an analysis of Rule 4, its overseas procedures excepted.  Had the judge denied the motion, then plaintiff’s counsel would have been forced to serve in Japan, and only then would Hague procedures be implicated.

[Don’t even get me started on why everybody ought to just waive in the first place.  Sure, you wouldn’t have to hire me, but still…]

Update, 4/13/17:  Ted Folkman posted on a similar opinion out of the same district on this morning— the latest in a line of cases he’s explored over the years.  As Ted points out in the comments below, only one case, out of E.D. Mich., has gotten it right, but he squares the circle for the others quite nicely in his thoughts on the Michigan opinion.  I commend those thoughts to you.

* Hat tip to Daniel Justice (could there be a better surname for a lawyer?) and George Kanabe.

** Rule 4(f), in its entirety [applicable to corporations thanks to 4(h)(2)]:

(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;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

Wright FlyerFor the entire life of my firm, I’ve had a recurring theme in just about every blog I’ve posted:  yes, counsel, you do have to translate that thing.  Translation is almost always unavoidable if you want a realistic chance of collecting a judgment.  But last summer, I offered some tips to limit the cost of translation of documents that have to be served abroad.  The first two bits of advice: keep brevity in mind (easy as pie for lawyers!), and avoid exhibits wherever possible.  Within the past month, these ideas have become particularly important to two separate clients in the very same practice area:  patent infringement.  Problem is, those clients hadn’t heard the advice prior to filing their claims, and it has cost them dearly.  Six figures dearly.

Patent infringement suits frequently involve foreign defendants.  Routinely.  In any sort of lawsuit, when just one defendant has to be served in a non-English-speaking country, especially one that is a member of the Hague Service Convention, the documents to be served must be translated.  Every word, every page, including exhibits, which are naturally part of the complaint they’re attached to.  The defendant may be quite competent in English—he may even be a U.S. citizen or “it” (an entity) may be presumed competent simply because it does business in the United States.*

None of that matters, because it’s not about the defendant.  It’s about the foreign officials handling the documents… and those officials don’t sprechen-sie Englisch or parlez-vous anglais.

When even a seemingly short patent is included in the exhibits, the cost to translate goes up considerably.  When two or three patents are involved, the cost is astronomical.  So how do you get around the cost?  Just reference the patents— don’t attach them as exhibits.  They’re a matter of public record, so if your defendant wants to know what a particular paragraph says in a specific patent, it isn’t that hard to look up.

Take the Wright Brothers’ patent for the aeroplane (yes, it’s spelled that way in the filing).  It’s just shy of seven thousand words.  Translate that thing into Chinese, and you’re looking at a $2,000 project, with formatting and editing and proofreading.  The Wright patent is a mere seven pages, omitting drawings.  Today, hundred-page patents are routine.  Extrapolate that into dollars and you see the horror of serving in three different countries, all of whom require a different language other than English.

But if the complaint just says “reference U.S. Patent No. 821,393, page three, line ten”, a whole bunch of resources are saved.

Unfortunately, if you’ve already filed the complaint with the full text, it’s probably too late.  But a bit of forethought prior to drafting can save literally tens of thousands of dollars in costs to serve.

Tens. Of. Thousands.

Who doesn’t want to do that?

* Ahem, “it” being an entity.  Yes, if an entity does business in the United States, it is presumed to be competent in English.  But that isn’t the end of the analysis.  When serving such defendants, their home countries’ declarations to the Hague Service Convention control language issues—not the presumptions of U.S. law.

 

Complete with screenshots!

Last spring, I did something that a cynic might call monumentally stupid:  I published the recipe to the Secret Sauce of serving process abroad.  Literally, a step-by-step guide to the procedure, right there for all to see.

“Are you out of your (expletive deleted) mind?” one of my close friends asked me.

Well, it would seem so.  I left a six-figure sales job to go to law school.  Draw what conclusion you will.

But a bit like McDonald’s and the Big Mac, I’m not worried about a do-it-yourself lawyer reading my blog and then doing it.  Nobody makes Big Macs at home.  Too much hassle.  It’s much easier–not to mention cheaper–to just hit the drive-through.

But many among us insist on self-sufficiency, so another friend suggested that I elaborate on the ten steps in the recipe with a separate post for each step.  As it turns out, either (1) I’ve already done so, or (2) it’s pretty straightforward stuff if you just click on the link indicated in each.

But for several steps, I linked to the website for the Hague Conference on Private International Law.  It dawns on me that a DIY lawyer might run into a wall when looking things up on that site.  So here’s a handy guide to getting country-specific information from the Service Convention section.  Feel free to sing play along at home.  [Apologies to phone/tablet readers… you really need a big screen to get the full effect.]

To start, click here (the main page for the Convention text) , and then choose “Status Table” as indicated below.  (The right-hand menu appears throughout the Service Convention section, so the site is pretty easy to navigate.)

HCCH 1Note that there are two tabs in the status table… this merely reflects the fact that a country need not be a member of the Conference in order to join a treaty.  (The converse is also true—of some three dozen Hague Conventions, the U.S. is party to only a few.)

HCCH 2

The status table indicates not only whether a country is in the treaty, but also how it joined, when it ratified, and when the treaty entered into force for that country.  For the sake of illustration, we’re going to highlight Belgium here– it’s high up on the list, so grabbing screenshots is much easier than, say, Vietnam (the newest member).  The table is handy for determining if a country has signed the treaty, but not ratified or put it into force (example: the U.S. has signed, but not ratified, the Choice of Court Convention).

Belgium (my adopted boyhood home*) signed the Service Convention January 21, 1966, ratified it September 19, 1970, and put it into force January 18, 1971 (note the “D” on the right—that indicates that declarations apply).

HCCH 3

Now click the “Authorities” button in the side menu (the orange arrow in the figure above).  Sticking with Belgium, click on Central Authority & practical information.

HCCH 4

The coming page really does tell you everything you need to know about its application in a particular country.

HCCH 5

The elements to look for:

  1. The name & address of the Central Authority. This is where you send your USM-94.
  2. The Central Authority’s email address. Some will answer you, some won’t.  It’s not personal.  It’s just business.
  3. Languages spoken by staff. This can be deceiving—even though they might say they speak English, they often don’t, in which case it’s a bit difficult to get an update.

HCCH 6

  1. Translation requirements (Art. 5(3)). Exactly what it says.  This entry, too, can be deceiving.  Even though the Central Authority might not require it, in non-English-speaking countries, the judicial officer executing your request might refuse to serve it without a translation.  When in doubt, translate.  Note that in Belgium, the proper language of the translation depends on locality.
  2. Costs relating to the execution of the request (Art. 12). The Convention prohibits the assessment of fees for serving process…

Article 12

The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed.

The applicant shall pay or reimburse the costs occasioned by —

a) the employment of a judicial officer or of a person competent under the law of the State of destination,
b)  the use of a particular method of service.

Seems pretty straightforward if you ask me—service is supposed to be free, unless you directly engage a judicial officer/competent person or request that a particular method be used by the Central Authority.

But (and it’s a big but)… many countries, including the United States, wiggle out of the fee prohibition by using the judicial officer or competent person method as a matter of course.  The US Central Authority (USDOJ) outsources its function to a private company, which then charges $95 to serve.  This frustrates other countries, who retaliate by either assessing a reciprocal fee (China) or rejecting US requests outright (Russia).

Back to our story…

  1. Judicial officers or other competent persons (Art. 10(b)). These are the folks you can contact directly to serve on your behalf (in Anglophone Canada, go to the Yellow Pages, of all places!).  In Belgium, you see here… contact the National Chamber of Bailiffs (hussiers de justice).

HCCH 7

  1. Declarations as to Articles 10(a), 10(b), and 10(c). Many countries object outright, so Article 5 is your only available channel (eg: China, Mexico, Germany).  Belgium, like the United States, opposes none of them.  Japan objects to 10(b) but sort of not to 10(a)… let’s just say it’s complicated in the Land of the Rising Sun.

Be incredibly cognizant of the destination state’s opposition to the alternative methods in Article 10.  Opposition means don’t even try it, pal, because declarations of opposition are part of a treaty.  Treaties, in turn, override the Federal Rules of Civil Procedure, and they override state law.

This is Boromir. It is not Ned Stark.
Hey, look!  It’s that guy from Game of Thrones Lord of the Rings!

Yes, that supremacy applies to the Hague Service Convention.

That, friends, is key to the whole service of process puzzle.

Hopefully, this gets you where you need to be on the HCCH website.  The Permanent Bureau is a tremendous resource for all of the Conventions, but the website provides all but the most intricate guidance for the Service Convention and others.

And if you run into a snag, gimme a call.

* In 1977, my dad was a few years into a career driving a desk for the U.S. Army.  That summer, our family went on a grand, three-year adventure in Europe.  The old man was assigned to Allied Headquarters in Belgium.  President Carter said go, we went, and I developed a life-long obsession with perfectly fried potatoes.