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Robert Anasch, Unsplash

All of our clients are lawyers, so we don’t hear this quip often. But when we do, it sets my teeth on edge just a bit, because the guy* on the other end of the line is either being extraordinarily rude, or– more likely– he just doesn’t have a solid grasp of what we do and of what’s involved when serving abroad. I always strive mightily to presume the latter.

Lawyers understand that rates are set at a certain level for a reason. A high-degree of specialized knowledge, the particular rarity of of that specialized knowledge among the practicing bar, expert tutelage, and years of experience… all go together to justify an attorney’s hourly rate or, if we’re focused on an outcome rather than time invested, an attorney’s flat rate.

Last fall, I published a post entitled Focus on value– don’t just go for the low bidder when serving overseas defendants. This is rather a sequel to that, with an illustration.

Not long after that post went live, a colleague from Notkansascity rang me up and said, “hey, Aaron, I have a few companies I need to serve in Notamerica.** Can you help me out?”

Of course, I said. Tell me a little bit about the defendants and the case.

We discussed the causes of action and the forum, and I brought him up to speed on the applicable doctrine both here and in Notamerica. Local requirements, the Hague Service Convention, and foreign law… by the end of the discussion he had a good grasp on the rulebook involved.

Turns out it was one of those situations where the defendants are all part of the same corporate family and use twelve different names on their websites and not a single one of them is accurate. No problem, though, as the Republic of Notamerica has a pretty robust corporate registry, not unlike what our Secretaries of State provide here in the U.S. (I sensed a whole lot of “a/k/a” designations coming). Within about ten minutes of searching, I concluded that he’d listed in his complaint more defendants than actually exist; most of them were just trade names or variations on actual entity names, conjured up by some overzealous marketing major who didn’t take BusOrg with Big Tony.

Together we reduced the list to a manageable– and realistic– number, and he asked me to work up an engagement. Ten minutes after I sent it to him, I get a snarky message back. “Wow. X-thousand dollars just to deliver some extra copies? That seems kinda steep.”

He had to have been thinking in terms of his local process server. I’d just spent an hour helping him whittle down a problem that would have cost him ten hours to clean up on the back end. But what process server has the legal acumen to do that?

Except that’s precisely what we do here– we don’t just salute and do what we’re told without saying, “hang on a tick– there’s a better way to approach this situation.” We have two goals in mind for everything we do: (1) protect our fellow lawyers, and (2) make us all better at the practice of law. In short, our mission is to help other lawyers do what they do, better (cue BASF commercial from the 90s). We’re in the business of telling our colleagues where the landmines are buried. We’re in the business of saving bacon. Seriously.

But this guy had reduced what we do to delivering paper. That’s all. Not advising him on the minefield he was about to saunter into. Not preventing the embarrassment certain to befall him when the judge benchslaps him for not doing his homework. He perceived us as a courier service and nothing more– which is even a jab at his local process server.

That begs the question: if all you need is somebody to deliver a stack of paperwork, why don’t you just call FedEx or UberEats or Drizzly? [Easy answer there. Because they don’t know the rules surrounding proper procedure.]

Serving process domestically is a challenging business, and you don’t want to leave it to some schmoe who doesn’t have a clue about applicable rules or about the peculiar things process servers face when they’re out and about. To be sure, I know some awesome process servers and I know some schmoes, and if I were running a lawsuit, I know which ones I wouldn’t hire. They need to do more than simply deliver things.***

Now extrapolate that to Notamerica, where they may or may not even have process servers in the first place (seriously– they don’t exist outside common law systems, and not even everywhere in the common law community). Serving process abroad is significantly more challenging than service here at home, simply because things work differently over there.

Landmines are buried everywhere in the overseas service arena. Some fields are sparsely laden (and thus not difficult to navigate safely), while others are chock-full of incendiaries that can derail a cause of action entirely.

We don’t just deliver paperwork. We navigate through those minefields.

A LOWER-COST ALTERNATIVE…

It may very well be that a litigant simply lacks sufficient resources for his/her lawyer to hire us. I get it, believe me, I get it. So I’m always keen to suggest a lower-cost approach that will help lawyers draft and file their own Hague Service Requests. It’s called Hague Envoy, and it compares to my firm like TurboTax compares to a CPA. Nobody needs to do it alone when there’s software to lend a hand.

* It’s always a guy. Seriously. Women in the legal field are just more respectful and, usually more thoughtful. This assertion is not an absolute, but it’s a rebuttable presumption.

** Tip for non-Geography majors: Notkansascity and Notamerica are fictional places, sort of like those silly jurisdictions like “Erehwon” that they came up with in Moot Court.

*** This is not a slam on the millions of people who deliver our mail, our Amazon packages, our pizza (shout-out to my guys at Minsky’s!)… but it is an argument that process servers must know and do and document a whole lot more.

No, really. It’s gamesmanship, it’s wrong, and it’s prejudicing your client. Think Charlie Brown and Lucy and that blasted football.

If defense counsel were going to accept service on their client’s behalf, they’d have done it already, so quit screwing around and recognize that time’s a-wastin’. Quit letting them pull the ball away at the last moment and send you flat on your back.

The biggest frustration my litigator clients face is the excruciatingly long wait that follows submission of a Hague Service Request to certain foreign authorities. We’re talking two years (<– not a typo) in many places, like India or Mexico. Plaintiffs pull their hair out in exasperation because, well, it just shouldn’t take this long. Judges and clerks are naturally irritated when the docket isn’t moving the way it should. All of these irritations are understandable. And they’re unavoidable.

Yet what is avoidable? Several things come to mind– all down to opposing counsel’s shenanigans:

(1) Silly delays brought on by opposing counsel’s foot-dragging.

Oh, gee. Let me see if my client will authorize me to accept and I’ll get back to you.

And then… crickets.

I regularly hear from prospective clients weeks or months after I’ve closed a file, saying “yeah, they said they were going to appear and still haven’t, so I guess we have to start the Hague process.” Perhaps two thirds of the projects we start and then pause are re-started again after a month or two.

Quit letting them jerk you around, gang. For starters, send the defendant a Rule 4(d) waiver request– yes, to the defendants and not their lawyers, although a courtesy copy can’t hurt– because that’s what Rule 4(d) directs you to do. Make very clear that, if they don’t waive, you will move for fee shifting to recoup the several thousand dollars spent to serve them. If they don’t get back to you in a month, you pretty much know where you stand.

If defense counsel promises to waive, ask them when specifically. If they don’t do it within a week, you pretty much know where you stand. When are you going to enter your appearance?

“I don’t know yet…” really means “I’m not going to but I want to stretch this timeline out as much as possible.”

They’re just jacking with you. Seriously, it’s a delay tactic. It may be counsel playing games, it may be that his/her client is just devious… either way, delay benefits them, not you or your client.

(2) OC gives you a service address that turns out to be bogus according to the foreign country’s registry.

If they’re that dependable or trustworthy, why in the hell don’t they just waive and save everybody but my stockbroker some trouble? I’ve actually had clients direct me to request service at an address provided by opposing counsel, despite clear indication in the defendant’s corporate registry that it should be served elsewhere. And they’re surprised a year later when the Hague Request fails.

At that point, plaintiff’s counsel cannot honestly tell the court that we don’t know the defendant’s address (in which case the Hague Service Convention doesn’t apply), but he does have to honestly tell the court that we have to tee this thing up again and waste another year waiting.

(3) OC purports to have authority to accept but actually doesn’t.

Yes, this actually happened once. Plaintiff filed suit, defense counsel told plaintiff’s counsel that he would accept on various individual defendants’ behalf. Plaintiff served him. He appeared. All seemed to be going well.

And then the defendants claimed he never had their authority to accept service or represent them in the first place. Not a good day for that lawyer.

And the plaintiff still had to pursue Hague Service.

Wrapping it all up.

I still hold to the Shakespearean maxim about adversaries in law: strive mightily, then eat and drink as friends. When I know that the party across the table is represented by a colleague that I know and trust, my job is actually easier. But trust in that colleague only goes so far; I still have to represent my client to the best of my ability, and that ability requires a little skepticism at times.

Unless you have some certainty that OC is an honest broker who has the defendant’s authority to play nice in the sandbox, don’t buy it. Or at least, don’t buy it for long.

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Ksenia Yakovleva, Unsplash

Three years ago I posted “Modify State Court Summons Deadlines. Just do it.” to equip my clients (all lawyers) with the necessary ammunition for an argument with their clerks of court when summonses are to be served abroad. Essentially, I laid out the logic that, if a summons contains language that makes it expire within X days after issuance, that expiry language must be removed, lest it (1) cause a service request to be rejected by a foreign Hague authority or (2) automatically moot the summons prior to service by that authority. Maryland is my big problem child in that regard. Illinois and Connecticut are more than a bit quirky.

Enter our friends in Michigan.

The Mitten State. The Great Lake State. The Motor State. The We-Deserve-a-Super-Bowl-Win State (they really do). The state where a summons expires by rule 91 days after it’s issued.

The language of the summons itself, Form MC 01, isn’t problematic and needs no modification. It contains nothing like the self-immolating text found in most Illinois and all Maryland summonses. (I’m still looking at you, Crabcakes. Seriously, get your act together.)

But while Mich. R. Civ. P. 2.102(D) is very clear, it presents a challenge to parties looking overseas to tag their opponents. In whole:

(D) Expiration. A summons expires 91 days after the date the summons is issued. However, within those 91 days, on a showing of due diligence by the plaintiff in attempting to serve the original summons, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the summons is issued. If such an extension is granted, the new summons expires at the end of the extended period. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses issued under subrule (A) do not extend the life of the original summons. The running of the 91-day period is tolled while a motion challenging the sufficiency of the summons or of the service of the summons is pending.

This is a huge problem when the summons is directed at a defendant abroad, because the odds that it will be served by the 91st day are slim in some places and precisely nil in most of the world. And you can’t simply get an extension on the original summons once it’s already been sent to a Hague Central Authority in Notamerica.* You must ask the judge to issue a second summons, extended out for a year, and then you have to start your Hague Request all over again.

So what should you do to negate the need for a second Hague Service Convention Request, and all the costs that entails?

Simple. Get the first summons on Monday, throw it in your digital wastebasket, then ask for a second one on Tuesday.** The judge is naturally going to look at you like you’re nuts, but explain that, gee, your honor. Aaron says things don’t work over there the same way they work here.***

Expected timelines around the world run from blazingly fast– Ticino, the Italian-speaking canton in Switzerland, once got a proof back to me in three weeks– to glacially slow, India and Mexico being the worst by far. They often take two years (that’s not a typo). But even in faster destinations like Switzerland and parts of Germany, delays still happen, and they’re completely outside your control. In order to ensure your client’s access to justice and promote judicial economy, relate to the judge the expectation that the 91-day limit is all but certain to be blown. That means you’ll be back to ask for another summons anyway down the road.

Way down the road.

* Tip for non-Geography majors: Notamerica is a fictional place, sort of like those silly jurisdictions like “Erehwon” that they came up with in Moot Court. My friends in the immigration bar fight having their clients sent there.

** While you’re at it, pull the second page of the MC 01 — for the same reason you should pull page 2 of a federal AO440 summons. It’s not the appropriate proof.

*** Cite me as an authority at your own peril. Then again, if your judge has a sense of humor show him/her this post. If he/she is grumpy, keep me out of it.

Rustic/ Vintage Door With Push Sign
Devon Janse van Rensburg, Unsplash

(Author’s note: this isn’t just a problem in California– others dig their heels in, too, particularly in Ohio and Maryland. It’s a state court issue, from coast to coast, but Los Angeles has been the problem child of late.)

For the most part, the work I’ve done in this little niche over the past twelve years has been rewarding and uncontroversial. The biggest frustration I encounter in the nuts & bolts side of my practice is failed service despite our best efforts, because some foreign bureaucrat doesn’t want to do his job. There’s precious little we can do about that, so as long as expectations are managed, even that frustration doesn’t keep me up at night. Lately, though, we’ve seen a surge in rejection of proofs of service by court clerks who just don’t know what they’re talking about. It’s been an increasing problem just recently in Los Angeles County Superior, where I’ve never really encountered many roadblocks.

And yet…

For some reason this summer, the clerk’s office in L.A. has been demanding that we provide a wet ink (SRSLY?) copy of Form POS-010, the standard California proof of service with an inadvertently hilarious epically unfortunate acronym. Sorry to break it to you, folks, but no.

The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid.

For starters, service effected pursuant to Article 5 of the Hague Service Convention is proved up by a specific form– a Certificate— mandated by Article 6. It’s truly all the proof you need, thanks to that pesky old Supremacy Clause. In case you’ve forgotten those two semesters of ConLaw…

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Yep. That one. (Emphasis mine, of course.)

Pretty easy to make the clerk’s argument collapse pretty quickly. Article 5 service is proved up by a Certificate issued by various foreign officials, and the U.S. court must accept it. Period. No debate. Do not pass GO, do not collect $200.

But it gets a little murkier when service is effected pursuant to Article 10(b) because there’s no form of proof prescribed by the treaty. CCP § 417.10 lays out how to prove up service effected within California, and that’s by affidavit. In pertinent part:

(a) If served under Section 415.10, 415.20, or 415.30, by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.

Seems to support our argument, doesn’t it?

Ah, but wait. Keep reading and you’ll find the problem:

(f) All proof of personal service shall be made on a form adopted by the Judicial Council.

Okay, so the clerk isn’t just being bullheaded. But you still have to push back.

The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid. Therein lies the logic behind the affidavit– it fulfills the § 417.10(a) mandate that time, place, and manner of service be demonstrated, but it goes beyond that to demonstrate the proper treaty article in play, as well as the identity of who’s calling the shots. At that, §§ 415.10, 415.20, and 415.30 aren’t specifically applicable to service abroad either, so the applicability of § 417.10 at all is tenuous at best. [To be sure, § 413.10(c) covers service abroad as to method, deferring to the law of the foreign jurisdiction– not as to proof form.]

The net result of insisting on the POS-010 is really just more paperwork on the clerk’s desk– more follow up to do.

Accepting what we provide means less work for the clerk, because the judge isn’t going to come back and query how this overseas effort was legal.

Push back– it’s better for everyone.

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Aleks Marinkovic, Unsplash

Seriously. Unless you absolutely have to serve them with process (ie: the summons), leave discovery demands out.

Lots of plaintiffs’ lawyers gasp when I say that.  They look at me like I have three heads.

  • “Are you nuts?”
  • “Oh, you’re a comedian now?”
  • “Clearly, you’re an idiot.”

I certainly understand why they react that way. It’s common practice in many states to include discovery demands with a summons* and complaint/petition because he who demands first… demands most effectively. Under some rulebooks, omitting discovery documents from service of process puts you in an oddly defensive position at the outset.

But here’s the problem: discovery is a four-letter word outside the United States.

In civil law systems, which are in place pretty much anywhere the Union Jack didn’t once fly over (and even some where it did), demands for evidence are made by the court– not by counsel for the parties. They’re based on the Napoleonic code, very French in nature. And they’re inquisitorial systems, in which lawyers barking questions and production demands at opposing parties can be seen as a usurpation of judicial authority. As such, asking foreign authorities to serve rog’s with the summons and complaint can derail the whole thing.

But even in common law jurisdictions (eg: naturally, England and the anglophone provinces of Canada), U.S.-style discovery is frowned upon. Sending discovery demands to those jurisdictions is just not a great idea if you can help it.

Unless there’s a truly compelling reason to include the first discovery shot with process, leave it out.

* Yes, Texas, I see you there. It’s a Citation in your world, I know.

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Edu Lauton, Unsplash

From time to time, I’ll have a client ask about the most appropriate way to advise the court that a Hague Service Request has been submitted to a foreign Central Authority, in the interest of avoiding a benchslap due to long wait times. My stock answer: don’t.

Don’t do it because you’re just inviting unnecessary scrutiny.  Be ready to answer the question if it comes up, but know that it very frequently doesn’t come up. If you’re in federal court, especially S.D.N.Y. or C.D. Cal. or (the big ones for IP) W.D. or E.D. Tex., trust that the court has been down this road before– routinely– so they get it.  If you do happen to receive one of those automated 90-day nastygrams directing you to show cause for your highly disrespectful flouting of all expectations good and holy, respond then.  It seems counterintuitive, I know, but being proactive here is not a good idea. Being reactive, quickly and forcefully so, is the best course of action. Hear me out on two scenarios:

Scenario 1

Larry Litigator has a defendant in China. He calls me one bright Tuesday morning and asks if my firm handles the Hague Service Convention (ahem, yes, exclusively). He hires us to check out the defendant’s identity and whereabouts, get the summons and complaint translated, and file the appropriate request with the Central Authority in Beijing. My staff sends Larry confirmation of the filing, along with my reminder that things just take longer over there, but also that he has a friend in Rule 4(m)— so the court can’t ding him because it could be a year or two before Chinese authorities send us proof of service. Larry files an advisory with the court indicating that he’s done his job and gotten the procedure underway in the People’s Republic of China, and now he has to wait, and by golly, he doesn’t know how long.

Three months later, he gets a show cause order demanding that he justify his failure to serve the defendant within the allotted time frame. Somebody at the court didn’t read all of Rule 4(m), so they don’t know the ordinary deadline goes out the window. Still, because Larry told them what was going on earlier, their curiosity is piqued. Larry is scared into throwing himself on the mercy of the court, and promises to provide updates every 90 days until proof comes back. Larry now has to file the same “gee, Your Honor, we still don’t have anything back” advisory. And he’s created a whole bunch of unnecessary work for himself– work that still neither satisfies the court nor speeds the docket along. Halfway through the second year, proof finally arrives and the judge still looks at Larry wondering why he didn’t make this whole thing go more quickly.

Scenario 2

Laura Litigator has a defendant in China. She calls me one sunny Tuesday afternoon and asks if my firm handles the Hague Service Convention (ibid). She hires us to check out the defendant’s identity and whereabouts, get the summons and complaint translated, and file the appropriate request with the Central Authority in Beijing. My staff sends Laura confirmation of the filing, along with my reminder that things take longer over there and she has a friend in Rule 4(m) and the court can’t ding her because the Chinese authorities take so long… in short, Laura, relax. It may happen slowly, but it’ll still happen.

Laura goes on with her life, content in the knowledge that proof is coming eventually, and that she might even know it’s done before I do (completely normal, that). At the 90-day mark, an nasty email pops into Laura’s inbox from the clerk’s automated system. “It’s been 90 days and you have failed to serve your defendant. Explain yourself or your case will be dismissed.” Somebody at the court didn’t read all of Rule 4(m), so they don’t know the ordinary deadline goes out the window.

Laura files a responsive pleading laying out the steps she’s taken– hiring us being the first step– and showing that she got the Request on file in Beijing well prior to the 90-day mark. She advises the court that she’ll prove service as soon as the Chinese government finishes its work, and she can provide no updates until that happens. Oh, and you guys in the clerk’s office ought to read all of 4(m). Just sayin‘. We’ll know when we know– and if you can think of a way to get the People’s Republic of China to do your bidding, I welcome suggestions.

Three months later, another automated nastygram pops into her inbox and she simply replies, “hey, did you guys ever read 4(m)?”

So who’s happier?

Laura.

Laura is happier.

USDS HQ
U.S. Department of State. Take the Orange or Blue lines to Foggy Bottom-GWU. Silver too.

[This rant is designed to guide my clients in getting the right paperwork generated for service by diplomatic channels. If I’ve sent you a link to this, that means you have to press the issue with your clerk of court– not because I want to create more work for the court staff, but the opposite. I want to minimize their workload and smooth the road to successful service. I’m not joking here– when I say I need exemplified copies of your Letter Rogatory, I mean exemplified. Not certified, not verified… exemplified. It’s a term of art, used for a very specific purpose.]

When we seek service on a defendant located in a non-Hague Service Convention country (or a recalcitrant Hague country), we often use a Letter Rogatory, in which the judge hearing the case asks a judge in the foreign country to order service effected according to that country’s laws. Once the judge signs the Letter, we send it and the service documents (along with a translation and duplicate copies, as well as a hellaciously expensive postage stamp*) to the U.S. Department of State. From there, the good folks at Foggy Bottom send all that in a diplomatic bag to our embassy in Notamerica, and consular staff there hands it off to the host country’s foreign ministry. Atop that stack of documents is one more page, by which the Secretary of State certifies to the foreign government that, yes, this is an official document signed by a real judge in a real court in the United States of America.

That certification is far easier for the State Department to justify, and thus, far quicker to generate, if the copies of a Letter Rogatory are exemplified. Not certified– exemplified. There’s a difference. (Notice how every single mention of exemplification in this post is in bold italics? That’s by design.)

All federal courts, and more than a handful of states’ courts (including the big systems in New York, California, Illinois, Florida, and Texas) have a standard form for exemplification. They’re not frequently used in many places, but they do exist, and it’s the responsibility of the clerks of court to properly issue them.

But you wouldn’t know it judging by the pushback we’ve received lately from several clerks– in four of the last five Letters Rogatory we’ve generated, the clerk of the court has insisted that “oh, hush– it’s certified, and that’s just fine.”

Except, no. No, it’s not just fine.

So we’ve begun including an additional document in the work product we generate for our clients. Previously, it was simply the draft Letter Rogatory and application for its issuance. The new document is a proposed order that specifically directs the clerk to issue two exemplified copies of each Letter Rogatory.

And still, they don’t get it. We’ve even begun specifying the form number (federal: AO 132, available here) so there can be zero doubt in the clerk’s mind what we need.

No, really. Exemplification is necessary. Don’t let the clerk tell you otherwise.

* A fee of $2,275.00 paid by cashier’s check. The most expensive postage stamp you’ll ever buy.

Another statement we hear regularly from colleagues who very legitimately seek to save costs or just cover all possible bases– and others who just want to shortcut the process in a super-cheap, super-quick way without worrying about proper procedure:

We’re going to serve alternatively instead of using the Hague.

Impossible to let that one go by without some discussion. Why? Because unless service happens (1) here in the U.S. or (2) in a Hague Service Convention jurisdiction that makes Article 10 available…

THERE ARE NO ALTERNATIVES

Let me elaborate.

This isn’t one of Aaron’s off-the-cuff, smart-aleck exclamations (though there are many of those). It comes from no less an authority than a very nice lady from Arizona, the Honorable Sandra Day O’Connor. You might have heard of her. In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor made very clear that:

  • if the Convention applies, thou shalt adhere to it (at 699), and
  • the methods outlined in the Convention constitute an exclusive menu of options (at 706), so thou shalt not get cute.

The Convention lays out a primary method of serving defendants abroad: a Request pursuant to Article 5, sent to the designated Central Authority tasked with executing such requests. Article 10 offers alternative avenues to valid service, provided the state of destination does not object. Where the destination state does object, no alternatives are available within the confines of the treaty.*

Notice the condition of the first holding, though: if the Convention applies. That’s a complex issue. Here’s the roadmap to addressing it:

  1. Threshold question: do you have to serve (term of art), or just provide notice?  The Hague Service Convention doesn’t govern mere notice—just service.  So if you only need to notify a party, don’t sweat the Convention.**
  2. Do the documents absolutely, positively have to go to the foreign country to be served?  Article 1 is pretty clear: “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.”  (Emphasis mine.) If the docs have to cross a border, you’re probably on the hook.
  3. Can you serve your offshore defendant via his/her/its agent here in the United States?  If so, you’re off the hook.***  If you can’t get it done here, keep reading.
  4. Is the destination country a Hague Service Convention signatory? If no, don’t sweat the Convention. If yes, keep reading.
  5. Do you have the defendant’s address?  If so, you’re definitely on the hook.  The Convention applies, so follow Justice O’Connor’s directive.  If not, “This Convention shall not apply where the address of the person to be served with the document is not known.”  Don’t sweat the Convention—alternatives, including electronic service, are just fine.  Just know that you can’t simply shrug and disavow any knowledge of the defendant’s whereabouts.  You still have to be diligent in trying to find the guy.
  6. Does the destination country object to Article 10 alternatives? (This gets to O’Connor’s second holding.) If not, then you’re still limited to that country’s allowable options, but those can be pretty flexible. But in what I call “5-O” countries, sorry. Your only avenue to valid service runs through that country’s Hague Central Authority.

So let’s say you’ve gone through that roadmap and determined that yes, you do have to serve in Korea or Mexico or Switzerland or Brazil or China or any other 5-O country.  You don’t have a choice in the matter.

So don’t get cute.

* Letters Rogatory are always available– and they don’t flout the Convention, which opens the door wide to service via diplomatic channels. But considering them an “alternative” is a bit off-bubble. Who would go to even more trouble than the Convention requires? (Well, turns out, there may be a place where it’s necessary.)

** Language geek note here: the English version of the treaty just addresses service. The equally applicable French version differentiates between notification and signification, but that is a civil law distinction that I argue isn’t germane to common law matters. It reflects various degrees of formality that we just don’t get into and they do.

*** This includes service via the defendant’s U.S. counsel, but pay heed: such service doesn’t happen pursuant to a 4(f)(3) order— it has to arise by agency theory.

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Evangelina Silina, Unsplash

We handle Hague Service Requests for lawsuits in courts across the continent, from Puerto Rico to Guam to Nunavut (yes, Nunavut, the Canadian territory way up on the Arctic Ocean.) All of our clients are attorneys and their firms. All. That is an absolute. Occasionally, though, when we send a client an engagement letter, the client will ask us to revise and address it to the litigant. My response:

Sorry, we can’t do that.

Or, more accurately stated, we won’t do that, for a host of reasons.

For starters, I’m admitted to practice in Missouri. End of list. Even though my practice is limited to transnational legal doctrine, that means there’s a less-than-two percent chance that I can advise that litigant without the possibility of a UPL charge. I’d beat the charge (federal issue, after all), but it’s just not worth it.

Second, advising a litigant directly means getting in the middle of an attorney-client relationship. In that situation, I might say something that contradicts what the litigant’s lawyer told them, which could make the lawyer look bad. Even with that lawyer’s fully informed consent and direction, no thanks. I’m not about to cast that colleague in even a glimmer of bad light.

Third, if we take an engagement with the litigant, the litigant might think that I’m his or her lawyer. I’m not, and I don’t want even a hint of a possibility that s/he will think so.

And last, if a litigant engages us directly, that naturally gives the impression that they call the shots and can ring us up and pepper us with questions and tell us what to do. Nope, not gonna do that. My job is to explain relevant/applicable doctrines of international and foreign (many of them arcane and obscure) law to my clients, and then to apply those doctrines to a case in controversy. It’s far easier, and takes significantly less time, to explain those doctrines to attorneys and paralegals who are already up to speed on the domestic law that applies as well.

To be sure, our fees can be paid by a litigant. That’s often necessary just in the interest of expediency. But the ultimate shot-caller, if there are any calls to be made, is the litigant’s lawyer.

Author’s note: I’ve varied from this rule three times in my career. Two of them were unmitigated disasters, and the other was no picnic.

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’m an insurance lawyer, I’ll never need to serve anybody in a foreign country.  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 the Game of Thrones guy into your slide deck!

Seriously.
This is Boromir.  I use him all the time in CLE decks and in blogs. Why reinvent the wheel? (To be sure, this is not Ned Stark.  He just looks like Ned Stark.)

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever handle a subrogation case?  (Yes.)  Ever sue a manufacturer of a defective product that caused property damage or injury?  (Yes.)  Think Toyota or Krupps or Gree Electric Appliances might be your defendant?  (Hmmmm.)  Bear with me here…

Rule 4 (Fed. R. Civ. P.) and its state analogs will govern your quest, and they start off right up front with service of process. Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it. And it doesn’t matter whether it’s a divorce or a contract dispute or a subrogation case.

Yet, rejoice, dear colleagues who represent insurors who just want to recoup their losses.  You are under no heavier a burden than the rest of us.  Just pretend you’re trying an injury action or a patent infringement or what have you. There is literally no difference in how you get service effected.

There’s a problem, though:  proper Hague service takes a while.  A very long while in many instances.  And Rule 4(m) says you have to have a defendant served in 90 days or the court has to dismiss the action.*

Except, no.  Rule 4(m) sets out a 90-day deadline for service, but that deadline is also inapplicable to service abroad.

Simply put, if you have to serve a defendant outside the United States, it probably won’t happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.

Nnnnnnneee!
Nnnnnnneee!

In France?  Non.  Germany?  Nein.  The Netherlands?  Nee. —>

Okay, maybe a short time in the Netherlands. But in Mexico or China or India?  Not a snowball’s chance in hell.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures override lesser laws. A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

In short, if the judge balks at keeping your case on the docket past Day 90, tell the judge that James Madison & Alexander Hamilton said they have to.

* State rules vary, of course. Many simply track FRCP 4(m), while others allow enlargement for good cause, and what better cause can there be than a crystal clear edict from Justice O’Connor? (Sorry, Wisconsin & Michigan… you’re my problem jurisdictions. In order to reach the same result, y’all have to resort to Equal Protection arguments!)