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.  Unless the defendant is something like the National Weather Service or the Warwickshire branch of the Ministry of Housinge, a waiver is required, no matter where the defendant happens to be sitting– in Berlin, Germany or Berlin, North Dakota.

Rule 4(d)(2) goes on to say:

If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

Aha!  Magic words to the lawyerly ear: FEE SHIFTING.

But what’s missing in the rule?  Foreign defendants.

Okay, they’re missing, but take another look at the framing of the rule.  It says the court MUST fee shift if a domestic defendant doesn’t waive and can’t make a decent argument as to why.  Offshore defendants are left out of the equation entirely (more on why that is a minute).  Does that mean, then, that their obligation goes away?  On the contrary– the obligation still arises when the defendant is properly asked to waive.  They still have an affirmative duty to avoid unnecessary expenses of serving– and having billed some clients in the low six-figures (in advance!) for service on a defendant or two, I can tell you that it just isn’t necessary.  But some defendants just won’t play nice.  The 1993 Advisory Committee’s notes are illustrative on this point:

The aims of the provision are to eliminate the costs of service of a summons on many parties and to foster cooperation among adversaries and counsel. The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense. Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States.

(Emphasis added.)  They were talking about Toyota there.  Yep, a Japanese company that makes a bunch of money in these United States.

But that begs the question:  why are offshore defendants left out of the fee-shifting provision?

Well, in the 1993 re-vamping of the rules on serving a summons, the original text didn’t make a distinction between U.S. and non-U.S. defendants.  The British diplomatic legation made known its displeasure, and the drafters just didn’t want to have to fight about it, so they punted.**

Now, there’s some logic in the displeasure.  Why, after all, should a blue-collar guy from Dorchester, who saves up for years and takes his family to Disney World but gets in a car accident, be expected to understand the waiver obligation?  He shouldn’t.

But what about a lawsuit involving a Rolls-Royce jet engine?  I’m pretty confident that Rolls-Royce has a capable bunch of lawyers on staff.  I’m fairly certain they understand the costs involved in serving them.  And I am straight-up positive that they know they get an extra 69 days to answer the summons if they fulfill their duty.***  [To be sure, I’ve never had to serve Rolls-Royce, so I have to conclude that they waive service as a routine practice.]

And what about the Swiss company that my client sued last year for infringing a dozen patents, all of which had to be translated into German?  Sure, the plaintiff’s complaint might have been significantly shorter (see here for a tip on that).  But even a modest complaint, combined with my fees and printing and shipping… you’re looking at a couple thousand bucks.  Substantial and unnecessary expense, which the defendant has a duty to avoid.  The avoidance of which provides them four times the normal number of days in which they must answer the complaint.

The duty arises, but the court does not have a “thou shalt shift fees” mandate for anyone but U.S. defendants.  What’s the foundation for the fee-shifting argument?

The inherent authority of the court to manage its own docket, assess costs, and sanction recalcitrant parties.

In short, it’s discretionary, and to my mind, naturally within the court’s authority.  The discretion allows the court to give Dorchester Disney Dad a break, but hold Rolls-Royce and Toyota and Lufthansa to a patently reasonable standard: you want to do big business here, plan on being sued here, and plan on playing nice with others.  That’s at the heart of the 4(d) obligation in the first place.

Unfortunately, there is no on-point** case law on the 4(d) fee-shifting issue– at least not that I can find.  Hint: I’m looking for a test case.


* For the record, 4(e) covers individuals served in the U.S., 4(f) covers individuals served abroad, and 4(h) covers entities everywhere.

** Dicta from the dissent in Brockmeyer v. May, 361 F.3d 1222, 1239 (9th Cir. 2004).  Oh, and I mean punted in the NFL sense, not the “gently plying the waters of the Thames on a pole-driven pleasure boat” sense.

*** Rule 4(d)(3).

[Author’s note: on its face, a post like this might seem self-defeating.  After all, my practice depends entirely on other lawyers who need to serve defendants located abroad.  Pretty straightforward stuff– if you sue Toyota or Lufthansa in a U.S. court, you either need help from somebody like me, or you have to do a whole bunch of research to make sure you’re doing it right.  Bottom line… outsourcing it is better for your client.  This little blog is not going to lead overseas defendants to waive… but it could lead to the plaintiffs getting their costs back.]





A sailor unloads the mail, Yokosuka, Japan, 2006. (U.S. Navy photo.)

In order for the Hague Service Convention (HSC) to govern the legal formalities of notifying defendants of claims against them, you’ve got to know where the defendant can be found.  An address is critical to service anywhere, on any defendant, but it can be particularly challenging when it comes to serving U.S. servicemembers stationed abroad– as well as when it comes to serving their dependents* or civilian support staff stationed with them.  It’s especially daunting when those folks live on a U.S. military installation in Germany or Italy or Japan or… any number of other far-flung locales.

A few years ago, I addressed some issues surrounding service on military personnel in two posts:

Bottom line, it’s tough.  And in many cases, service simply can’t be effected by “regular” means, either because the GI has no discernible address, or because local (foreign) officials either cannot or will not coordinate with U.S. military authorities to arrange for service.  But I’ve had a recurring issue pop up several times of late, dealing with the assertion that an Armed Forces Post Office (APO) or Fleet Post Office (FPO) or DPO (Diplomatic Post Office) address is sufficient to trigger the applicability of the HSC.

My response: no.

The HSC only applies when the defendant’s address is known… straight out of Article 1:  “This Convention shall not apply where the address of the person to be served with the document is not known.”  Pretty simple stuff.  But things really get complicated if the address is not known, or where somebody gets the idea that APO equals Hague validity.  It just isn’t so.

An APO/FPO/DPO address is a creation of the United States Government– specifically the Department of Defense in cooperation with the United States Postal Service, not foreign postal services– so it cannot be considered a “foreign” address.  Its formatting is roughly similar wherever an American is stationed or deployed around the world, and it carries a ZIP code. It provides no information whatsoever to foreign officials as to where they might physically find the defendant in order to serve pursuant to local law. Ultimately, it fails to even indicate that the defendant resides anywhere, much less in the particular country at issue.  Generally speaking, U.S. servicemembers receive mail from home primarily via their APO or FPO address; the only way they can receive mail via the host country’s postal service is by using a civilian street address or post office box away from the U.S. military installation. Likewise, the servicemember’s dependents (ie: spouses and children) receive their mail via APO channels.

  • If the defendant’s address is something like “198 Rue de Mons, 7011 Mons, Belgium” it can be done.  That’s an actual street address that can be found on Google Maps and is readily accessible by a local huissier de justice tasked with serving the papers.
  • If, conversely, the defendant’s address is something like “E Company, 2/506th PIR, APO NY 09055″, then all bets are off.**

Why?  Because APO addresses are attached to an organization, rather than a location.  In today’s military, they generally include a post office box number, so the conclusion that they aren’t connected to an actual abode is even more obvious.  I don’t know of a process server or judicial officer anywhere in the world who is willing to attempt personal service on an individual at a post office box.  Such an undertaking would rely on exquisite timing and monumentally good luck, in that the person serving must encounter the defendant precisely when s/he accesses her/his mailbox.  But if that box has no relation to their local mail system, it just won’t work.

Put that address on a Hague Service Request (colloquially, a USM-94)?  Fuhgeddaboudit.  It ain’t gonna happen.

So what is a litigator to do?

Well, first, undertake a diligent search to ascertain whether the defendant has a civilian address (ie: off-post, off-base… what’s referred to as “on the economy” in military parlance).  If you get one, great, proceed to Hague channels (see the Seconda Parte story above).

If you don’t, move for leave to serve by mail at the APO/FPO/DPO address– even if it’s not in the rules.  Don’t worry about running afoul of Hague restrictions.  If you don’t have anything but an APO address, Hague restrictions don’t apply.

Then, just to make sure all bases are covered (I contend that mail service alone is insufficient under Mullane), move for leave to serve electronically— email, Facebook, Twitter, etc.  There’s a significant line of federal case law that approves of electronic service, and a few states here and there are picking up on the logic.***  Use it if you have no other choice.

* Spouses, children, step-children, or other family members stationed abroad with the solider/sailor/airman/Marine.  Like me, as a kid.

** My family lived at 198 Rue de Mons for a year after we arrived in Belgium for my dad’s three-year assignment with the Army.  We never got a single piece of U.S. mail there.  Instead, all of our mail from Grandma and Sears & Roebuck went to the Old Man’s APO address (the Old Man was not a paratrooper, for the record) and cut out the Belgian postal service entirely.  I doubt Grandma ever knew about the 198.  Sears… well, if they’d known, they’d be omniscient and thus still operational.

*** Much of that case law is in error where the Hague Service Convention actually applies.  See Ted Folkman’s series on the disastrous Gurung decision, his White Whale.  Where all you have is an APO… fret not.

No, really.  I’ve argued ’til I’m blue in the face that Hague mail service is a bad idea.  Sure, it might be perfectly valid from a legal perspective, but factually… oy vey, you got problems, friend.

But even the legal perspective just became murky.  A few minutes ago, I got an email from the good folks at FedEx, conveying a message that I’m sure UPS and DHL will send out shortly.

We want to do our part to help prevent the spread of (microbe-who-must-not-be-named) in our communities.

That’s why effective immediately, we won’t require you to physically sign for most deliveries made in the U.S. It’s just another way we’re focused on Safety Above All – now, and always.

Visit our (Dark Microbe) customer site for more details and to learn more about how FedEx is responding as this situation evolves.

“We won’t require you to physically sign for most deliveries made in the U.S.”, you say?

Well, what about in other countries?

See, one of the federal requirements for valid mail service abroad is that the form of mail used require a signed receipt (yes, that includes FedEx and UPS and DHL).  It’s right there in Rule 4(f)(2)(C)(ii):

(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:

(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:

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

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

Set aside the fact that the vast majority of the world (by population and land mass, if not by market capital) objects to mail service under the Hague Service Convention.  Even where it’s acceptable, the Voldevirus just made things more complicated.

The takeaway?  Don’t try to do it the quick & easy way.  Use a more factually sufficient method.

* Entities fall under this rule, too, thanks to 4(h)(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).

We all need a giggle right now, so Bruno Mars fans and Harry Potter fans… y’all get together for Dark Lord Funk.

Charles Evans Whittaker Federal Courthouse, Kansas City, Missouri. Voidxor, via Wikimedia Commons.

A couple of years ago, I posited in “Removal and the Timing of Hague Service Convention Requests, Real World” that not only must service be effected properly, but the contents of the service packet had to be proper as well.  I discussed a case in which State Farm* sued a Korean defendant– among others– in state court, but one of the defendants removed the case to federal court before State Farm’s counsel initiated Hague procedures in Seoul.  The state summons was served instead of the appropriate federal summons, so the defense had a beautiful 12(b) motion to dismiss.  Ultimately, the case wasn’t kicked, but it could have been.

The court focused– erroneously, I think– on 12(b)(5), which permits dismissal for insufficient service of process.  Really, 12(b)(4) would be the more appropriate basis for dismissal, because it goes to the insufficiency of the process itself.  Here, there was no federal summons or removal order served– just the state summons & complaint.  But as the court points out, service was properly effected via Korea’s Central Authority.  The real issue was the content of the service.  State Farm simply didn’t send the right stuff to Seoul, so rather than dismissing, the court ordered it to tee up the ball again– this time with a new 90-day deadline.

It bears repeating:  there was no federal summons or removal notice served– just the state summons & complaint.

That’s risky, and it absolutely must be avoided, because savvy defense counsel will key in on that error every time, and they’re likely to win, at least in part.

If you file a state suit, get the wheels turning immediately to serve that state suit.  If you’re fairly convinced that removal will come before you can get a Hague request on file, hold off on translating the documents and engaging somebody like me to handle it for you.**  But above all else, make sure that once you’re removed, you have a federal summons at the front of the packet.

* Immaterial to the analysis, but important full disclosure: I’m a State Farm client.

** Don’t hold off on talking to somebody– but don’t pull the trigger too soon either.

Two white whales are the subject of my Captain Ahab diatribes in this space.  One concerns an issue of cross-border civil procedure, while the other concerns a rather goofy* interpretation of what the rest of the world views as plain language.  I address here the latter of the two:  the concept of a child’s habitual residence.  Remember those words, friends, because the U.S. Supreme Court held unanimously today that the term habitual residence should be analyzed under a totality-of-the-circumstances test.

In Monasky v. Taglieri, the Court held that a child’s habitual residence depends on the totality of the circumstances specific to the case, not on “categorical requirements.”

To be sure, this interpretation applied to the Hague Child Abduction Convention, in a case where the abducting parent took a mere weeks-old infant from its country of birth against the wishes of the other parent, and took her to another land– conveniently, the United States.  A trial court agreed with the other parent, saying “nope, take the baby back where she was born, and let them determine custody.”  That’s a gender-neutral distillation of the facts based on the Court’s syllabus, but it needs to be so in order to avoid bringing sympathy to bear on the matter.  The Court’s reasoning was spot-on, and it gives lower courts ample flexibility to weigh a range of factors into determining a child’s habitual residence.

I leave analysis of the case itself to more learned colleagues, most notably Amy Howe at SCOTUSBlog, and the host of others who will no doubt parse Justice Ginsburg’s text in the coming days.  My focus is instead on another treaty– the Hague Adoption Convention (1993), the interpretation of which in the United States has been an abomination for over a decade.

Just over a year ago, in Habitual Residence: Two Definitions, I offered this:

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

Well, Justice Ginsburg was pretty clear today– the parents’ intent is not the only thing that matters.  More circumstances must be taken into account.  As of today, a broad view is undeniably United States law under the Hague Child Abduction Convention, and courts have latitude to look into the reality of a child’s existence, rather than just an isolated element.  Under the Hague Adoption Convention, however, U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  Period.  No context, no consideration given to where the child has laid its gentle head for the past several years, no thought to what might happen to the child if its destiny is left to arbitrary decisions…

My argument today is that the Monasky holding should be applied to the Adoption Convention just as it is applied to the Abduction Convention.

The primary goal of the Adoption Convention is to stem the tide of human trafficking– a laudable one, to be sure– literally to stop the sale of babies on a sick, twisted global market, rife with the worst of humanity on both the supply- and demand- sides.  A unilateral, single element definition of habitual residence as currently applied (country of birth, period) certainly accomplishes that.  But it also arbitrarily prevents the adoption of children with no other option but to be taken in by their own aunts, uncles, grandparents, older siblings, and just kind Americans who want nothing but to give these kids a better life.

I hope Monasky stands for more than just one treaty.  It’s the same concept– habitual residence– in both treaties.  And the rest of the world views the idea in the same light.**  We should, too.

* I originally typed that as “Philistine-pig-ignorant” but decided that was too harsh.

** The Court’s opinion gave significant weight to the interpretation of the term by foreign courts.

Valetta, Malta’s capital.
Briangotts via Wikimedia Commons.

We ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  Serving process in Malta is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  This chain of islands, a former British colony off the southern coast of Sicily, isn’t just the site of a boat race in Season 1 of The Crown.  It is also home to stunning scenery, bright sunshine, and a wonderful blend of English, Italian, and North African cultures.  Malta is a relatively new member of both the European Union and the Hague Service Convention– and service of documents is fairly straightforward.

Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  At least not if you want it to work. You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is effected in Malta:

Article 5 Service

  • Translate the documents. English is one of Malta’s official languages, so game over, right?  Pack up and go home?  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.*
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—perhaps several months from submission to return of proof.

Article 10 alternative methods

  • Here’s where we run into a snag.  Malta hasn’t indicated whether Article 10 methods are available or not.  My best recommendation: leave them alone, and just send to the Central Authority.  Although most countries’ declarations and Central Authority information can be found here, the only info provided for Malta is a place to send Article 5 requests.
  • Down the road, the mystery may be resolved.

That’s it.  Really all there is to service in Malta.

But a bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

Wolf Lambert via Wikimedia Commons.

Last week, in Wrong reasoning, right result? I ranted a bit– criticizing the latest in a nationwide string of wrong decisions involving FRCP 4(f)(3).  At issue: whether courts can authorize service by email on defendants located in Hague Service Convention countries that object to Article 10(a).

My view is awfully straightforward– if the Convention applies, and the destination country objects to 10(a), then Nein.  没有。Нет.  ほぼ。 幾分。

Not no, but hell no.*

In a bit of serendipitous timing, a colleague pinged me over the weekend and asked for my thoughts on this one:  “Judge takes rare step to help serve elusive Ghislaine Maxwell with lawsuit.”  I’m usually pretty skeptical about the New York Post, notwithstanding my intellectual affection for Alexander Hamilton (there’s a million things he hasn’t done, but just you wait), although this particular article set aside the editorial slant that often dims my view of A-dot-Ham‘s creation.  Seems there’s a problem locating a civil suit defendant in the Jeffrey Epstein debacle, so plaintiffs’ counsel rightly asked the judge for leave to serve her by electronic means under 4(f)(3).  Specifically:

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

My response to the colleague who posed the question:

Sounds to me like exactly the situation Rule 4(f)(3) was designed for.  If the plaintiff can’t find her despite a diligent search (that’s usually where such a motion gets tripped up– they don’t search diligently) then the Hague Service Convention doesn’t apply.  Consequently, there’s no treaty-based argument that email service is inappropriate.  This one seems to be a valid application of the rule.


So why doesn’t the Convention itself apply?  Because they can’t find the defendant.  From Article 1:

This Convention shall not apply where the address of the person to be served with the document is not known.

If the Convention doesn’t apply, then electronic service creates no worry about fulfilling Justice O’Connor’s mandate in the Schlunk decision.  There’s no “occasion to transmit” the documents abroad.  There’s no worry about a hierarchy within Rule 4(f).  And there’s a pretty significant chance that the defendant’s due process rights will be fulfilled.**

As long as the plaintiffs can demonstrate that the defendant actually uses the electronic means authorized by the court, thumbs-up on this one.

* Whether it’s okay where the destination country doesn’t object is a different matter entirely, and quite arguable.  I have mixed views on that one… fodder for another post.

** From Mullane and Rule 4(f) itself… a means reasonably calculated to provide notice and an opportunity to defend.

Old High Court and Supreme Court, Wellington. Pear285, via Wikimedia Commons.

Just off Australia’s east coast lies a gorgeous chain of islands known today in large measure for its huge population of Elves, Orcs, and Dwarves (and one very grumpy little fellow).  Before New Zealander Peter Jackson filmed his Lord of the Rings and Hobbit trilogies, New Zealand was famous primarily for (1) the Māori Haka,* especially performed by its powerhouse All Blacks national rugby union team, and (2) sheep.  LOTS of sheep.  Oh, and then there was this guy.

New Zealand is not party to the Hague Service Convention (HSC), although it has acceded to the Hague Adoption, Apostille, and Child Abduction Conventions.  Notwithstanding its absence from the HSC, serving documents in New Zealand is relatively straightforward, owing to its status as a former British colony and current member of the Commonwealth of Nations.  It maintains a healthy common law system, so it should not be unfamiliar to American or Canadian** lawyers.

Service of U.S. (and most likely, Canadian) process can be effected (1) by mail, if permissible under forum court rules, (2) by Letter Rogatory, or (3) via private process server.  In all cases, enforcement of a judgment must be kept in mind– and it is in that light that I recommend Door #3 for just about every case that come across my desk (yes, I’ll be happy to handle things for you).  Addressing each in turn:

  1. Mail:  Most U.S. courts, where service is allowable by mail to begin with, allow mail service on foreign defendants only where it is not prohibited by the rules of the foreign jurisdiction.  New Zealand’s High Court Rules do not specifically prohibit mail service, but they also don’t specify how mail service should be effected unless a P.O. Box is involved.  Frankly, I’m still not a big fan of service by mail– it’s a bad idea when there are other practical methods available.
  2. Letter Rogatory:  an official request from the forum court for judicial assistance from a New Zealand court.  Costly and time consuming, this instrument really isn’t all it’s cracked up to be (see here for elaboration on what it is).  For starters, budget a $2,275 fee to the Department of State just to convey the thing.  Then anticipate several months of waiting before a response comes back through diplomatic channels.  A Letter Rogatory simply isn’t necessary to ensure that service is effected according to New Zealand law.
  3. Private process server:  Not incredibly costly, and certainly on a more solid factual footing than mail.  A New Zealand process server can ensure that local rules are followed, thus ensuring that the manner of service will not give a court cause to reject an enforcement action later.  Just make sure that the proof of service demonstrates compliance with both bodies of law (High Court Rules, Part 6— if you’re curious– and forum court rules).

Some non-Hague jurisdictions present significant problems with service.  New Zealand is definitely not one of them— indeed, it is among the simplest places to serve, either within or outside the Hague community.

* See my earlier post on the value of Choice of Language clauses.

** Commonwealth procedures may govern the manner in which Canadian process should be served in New Zealand.  The author is not admitted to practice in any non-U.S. jurisdiction, so although the information presented here may be accurate, it should not be presumed to be exclusively applicable in Canadian causes of action.

You really didn’t think I’d let this post end without a picture of a Hobbit Hole, did you?

Tom Hall, via Wiki.
O’Connor, J.  Favorite daughter of Arizona and distinguished author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

The question mark in that headline only applies to half of the headline.

The result might be correct, depending on facts not articulated in the order, but the logic behind N.D. Ohio’s grant of leave to serve by alternative means in China is (to put it delicately) fatally flawed– an illustration of how “kinda-sorta-bad” law can evolve someday into extraordinarily-unquestionably-bad law.  In NOCO Company v. Shenzhen Lianfa Tong Technology Co., Ltd. et al. (1:19-cv-01855), the court issued the latest in a nationwide string of wrong decisions because, apparently, none of the lawyers in the room consider Sandra Day O’Connor an authority.

I’m serious.

Directly quoting from the judge’s February 5 order:

  • The preferred method for service of a foreign party is service pursuant to the methods authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Fed.R.Civ.P. 4(f)(1).

Well, no, not exactly.  Hague methods aren’t the preferred methods of service on a foreign party.  If the Convention applies, they’re EXCLUSIVE.  Period.

Says who?  Says Justice O’Connor.  And, ironically, Judge Boyko, in his very next sentence.

  • “The Hague Convention is the exclusive method of effecting service between signatories to the convention.” Midmark Corp. v. Janak Healthcare Private Ltd., No. 3:14 CV 088, 2014 WL 1764704, at 1 (S.D.Ohio May 1, 2014) (citing Kreimerman v. Casa Veerkamp S.A. de C. V., 22 F.3d 634, 643–44 (5th Cir.1994)).*

The judge goes on…

  • Rulings on alternative service of process under Federal Rule of Civil Procedure 4(f)(3) are discretionary since “the plain language of the rule stipulates that a district court ‘may’ direct alternative means of service.”



Okay, sure– if there’s no treaty that supersedes the Federal Rules of Civil Procedure (all treaties supersede such rules, in case the Supremacy Clause has been forgotten).  But if adherence to Hague strictures is mandatory– and if Hague methods are exclusive– there’s nothing discretionary about 4(f)(3).  The court can’t go there.  The only way a court has the discretion to authorize alternative means under 4(f)(3) is if they do not conflict with the Hague Service Convention (right, Justice O’Connor?).

The farther I read into this order, the more it sets my teeth on edge.

Yet another flaw…

  • Federal courts have repeatedly found that email service is not prohibited by the Hague Convention.

Yes.  They’ve wrongly found that email service is not prohibited by the Convention.  I won’t get into the issue very deeply, except to point readers to the excellent commentary on the Gurung decision by Ted Folkman over at Letters Blogatory (holy crap, Gurung is soooooo wrong).  Simply put, the only way that email service could arguably be permitted by the Hague Service Convention is if it falls under Article 10(a)– which says the Convention doesn’t interfere with “postal channels.”  But the Convention does interfere with postal channel service if the destination country objects.

China objects, so it’s off the table.  Done.

The exclusivity of Hague methods, described by Justice O’Connor in Schlunk, combined with China’s objection to Article 10, makes the line of reasoning in the NOCO Company order absolutely baffling.

So why do I expect that the court still reached the right result here?  Because absent an address for the defendant, the Hague Service Convention– by its own terms (Article 1)– does not apply.  The order indicates that the plaintiffs undertook a good faith effort** to ascertain an address for the Chinese defendant, but they couldn’t find one, and that is a solid basis for granting the order.

I have no problem saying that electronic service (email, LinkedIn, Facebook, Twitter!) fully vindicates a defendant’s due process rights.  After all, it’s the 21st century.  We can no longer kid ourselves by thinking that publication is reasonably calculated to give sufficient notice to a defendant, but service by electronic means that a defendant clearly uses?  You better believe it’s constitutionally sound.

It just can’t happen if it conflicts with a mandatory and exclusive treaty.

* The reference to Kreimerman tickles my brain a bit.  The 11th Circuit distinguished the Hague Service Convention (“hey, it’s mandatory and exclusive, y’all!”) from the Inter-American Convention on Letters Rogatory (“not mandatory, y’all, so go on ahead to 4(f)(3)!”).

** Strangely, the docket doesn’t provide the plaintiffs’ memorandum in support of their motion for alternative service.  As such, I can only speculate as to what sort of diligent search was undertaken.  If there’s any question, I can put them in touch with a great investigator.

Author’s note: this case came to my attention thanks to a post at the always-entertaining Above the Law.  In China At Your Service, Gaston Kroub offers that the NOCO order offers a glimmer of hope to IP litigants.  It really shouldn’t, and even if it does, that hope is tenuous at best– not just because the basis for the order is flawed.  Litigating may not always be the best course of action in the first place, as I discuss here— while bootstrapping commentary by Dan Harris at the China Law Blog.

Sorry, Google Maps. I fixed it for you with a Post-It™ Note Flag.  Man, those things are handy.

A couple of years ago, I posted an admonishment that Service of Process in Hong Kong means Hong Kong, CHINA.  That post was a precursor to the nuts & bolts post I put up a few months later on How to Serve Process in Hong Kong.  In that post, I stressed the care needed in properly naming the former British colony:

Serving process in Hong Kong is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Critical to note is that Hong Kong is very much a part of the People’s Republic of China, and for two decades has been considered a “Special Administrative Region” of the PRC.  For a century before that, it was a British colony, and its legal regime is still very British in nature… common law, solicitors, English-language pleadings & arguments, etc.  The PRC’s declarations to the Service Convention for Hong Kong really just continue the British Hague regime, rather than apply the rules for the remainder of mainland China.

But that only touched on the issue in the earlier post:

Simple practice tip: if your defendant is located in Hong Kong, be sure to refer to the jurisdiction as Hong Kong, China or, alternatively, Hong Kong S.A.R. (shorthand for “Special Administrative Region”).  Any request which refers to Hong Kong in isolation, and is submitted to the Hong Kong Central Authority for the Hague Service Convention, will be rejected as a matter of course.  Hong Kong government officials are particularly wary of showing any offense to the government in Beijing, and they insist on this nomenclature out of abundance of caution (aside: I truly wonder if Beijing even cares, but it is not for me to judge).

As a result, I always tell my clients that they should either amend their pleadings to accommodate the requirement, or they should select the more costly option of having service effected in Hong Kong by a solicitor.  A few months ago, I submitted an Article 5 request for a fellow lawyer (that’s what I do, after all) comfortable in the knowledge that everything was carefully drafted– he was wise enough to tap me on the shoulder before he filed, so I could give him the lowdown on the S.A.R.’s nomenclature, and his filings reflected the proper designation.  Everything was Jake.

Today, I get a nice letter from the folks in Hong Kong containing this little tidbit:

With reference to your request for service of judicial documents on the above­ mentioned party, I regret that we are unable to accede to it because the description “Hong Kong” is listed on an equal basis with other countries in the request form and/or documents to be served (see examples flagged).  You may consider amending “Hong Kong” to “Hong Kong SAR, China” before sending the request to us again.

Um… what the huh?   As I frantically skimmed the request form and the pleadings, it never even occurred to me that the rules had changed.  Nothing in my request form, nothing in my client’s pleadings– nothing– ran afoul of the S.A.R. requirement, so what are they talking about?

Then I saw the Post-It™ Note flags hanging out of the stack of exhibits.

Yeah.  The exhibits.  You know, those evidentiary offerings attached to a complaint, with the hopeful purpose of demonstrating the strength of a claim.  Those evidentiary offerings that, given their nature as evidence of circumstances or prior intent, cannot be amended.

The takeaway?  Don’t even bother with Article 5 in Hong Kong if the underlying contract or other relevant exhibits don’t likewise conform to the S.A.R. nomenclature.  It seems that lots of time and money are going to be wasted.

Occasionally, when I search Wikimedia for pictures to include in my blog posts, I come across a gem.  This is one of those times.  Searching “post-it note” in Wikimedia Images, this thing popped up.  It almost hits the mark, on a similarly touchy issue.  I’m guessing the map was printed in the PRC.

Image by wiki user Dh4102.