Federal Courthouse, Sioux City, Iowa. I worked in that building for three years back in the Ice Age. (GSA Image)

Y’all, if you know you’re going to be removed, just initiate the case in federal court to begin with.  It’ll save everybody involved a whole bunch of time and headache.

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

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

I certainly understand why they react that way.  State juries are kinder to plaintiffs, generally speaking, than federal juries.  And it makes perfect sense to go where your odds of success are better.  But the reality is, if you’re going to get yanked to a federal venue anyway, you’re a whole lot farther ahead to file there at the outset.

Look, I’m an AAJ member for a reason.  I’m a plaintiffs’ guy.  I like holding defense lawyers’ feet to the fire.  A huge part of what motivates me in this business is playing a small part in making injured parties whole, whether that injury is physical/emotional, financial, or constitutional.  And nine times out of ten, I’ll agree with you that state court is a better place to be than 40 Foley Square.

But purely from a service of process perspective, when you have offshore defendants, it’s a whole lot cheaper, a whole lot easier, and a whole lot less complex to operate under Fed. R. Civ. P. 4.  Several reasons:

  1. Time.  You’ve got a friend in 4(m).
  2. Certainty.  Rule 4(f)(1) specifies the application of the Hague Service Convention.  Thanks to Schlunk, you don’t have a choice in the matter, but you won’t have to argue with the judge when you can simply cite that rule.
  3. Flexibility.  If the Convention isn’t applicable, 4(f)(3) lets you serve electronically.
  4. Savings.  Notice pleading keeps translation costs down, while those of us in fact pleading states have to submit volumes, lest we waive a particular argument.

If you practice in Missouri and have ever scratched the surface of Rule 54, you know that the state’s rules on service of process aren’t incredibly well thought-out.  Or they may have been well thought out in 1973, but they haven’t gotten a deep-dive review in quite some time, so they really don’t reflect the realities of life in the 21st century.  When a client calls me from St. Louis or Cape Girardeau, I know that just getting a summons issued could be a massive pain in the neck.

Contrast this with the likes of Colorado (among other states), where the Supreme Court has substantially adopted the Federal Rules of Civil Procedure– not verbatim, but in large measure.  I know that litigators in Denver or Grand Junction aren’t too hassled when it comes to process, and I know they’ll enjoy the same operating system in either venue.

Now, if you can destroy diversity and think you have a better shot in state court, by all means– tee it up.  But if federal venue is inevitable, save yourself some turmoil in the beginning.

 

Since the beginning, the primary purpose of this blog has been to educate the practicing bar on the practical application of the Hague Service Convention.  While we’re happy to give away the recipe to the Special Sauce (there’s no secret about this stuff, really), we’ve been lucky to have a whole bunch of great people trust us to handle their Hague Service Requests from start to finish.  Many of them find us through the Hague Law Blog, the readers of which usually fall into one of three categories:

  1. Academics/students researching practical procedural matters,
  2. Do-It-Yourself-ers who need to serve defendants located abroad, and
  3. Clients of Viking Advocates (or those who are about to be our clients).

I have argued, also since the beginning, that a DIY approach to Hague Service is risky and potentially far more costly than it might seem, so today we’ve got some exciting news for the folks in the second category: you’re no longer on your own.

We’re excited to announce the launch of HAGUE ENVOY, a new platform designed for practitioners who still want to handle their own Hague Service Requests, but who don’t have the time to research all of the ins & outs of the Convention.

We’ve already done the research and pulled multiple countries together in a single application, and we’ve lived in the treaty for years, so the ins & outs aren’t new to us.  The result: lawyers and court officials can now focus on the substantive matters in a case rather than procedural hurdles.

It’s as simple as we can make it. Pop into the platform and pay the fee, answer a battery of questions, and in ten or twenty minutes, you have a completed request form (or forms… it’ll handle multiple defendants in multiple countries).  We’ll also provide guidance on what to do with the form in a specific, step-by-step format.

And along the way, if we spot a quicker and easier avenue to go down, we’ll let you know.

To be sure, Viking Advocates is still here for you, but if you definitely want to handle things on your own, Hague Envoy can be a handy tool for your workbench.


(My contact info is in the upper right ↗↗↗  if you’re on a desktop.  It’s down below ↓↓↓  if you’re on a phone or tablet.  Just sayin’.)

Buckinghamshire County Council, Ros Tyrrell, via Wikimedia Commons.

Yet another “FAQ” post, if you will…

“Hey, Aaron, the complaint is under seal, and the judge has ordered me to instruct the process server that he’s under the same obligation as I am.”

I respond: Well, that’s all fine and good, if you’re using private agent service in a country that would enforce the seal.  But Article 5 service via a Central Authority?  In a word, fugghetaboutit.  Once this thing goes overseas, all bets are off.

See, the seal has absolutely no coercive effect on a foreign authority except under the doctrine of comity, and it really has no practical effect on a private agent overseas.  At least, not one who isn’t somehow accountable to the court, and isn’t in a country that would enforce the seal.

With agents, ultimately, it comes down to trust, and that’s not the end of the world.  If the agent understands the gravity of the situation, and the real, palpable concerns that prompt the seal in the first place, you’re going to be okay.*

But when you involve foreign government & judicial authorities, all we have to go on is an argument that (1) U.S. courts would respect a judicial seal ordered by a foreign court, and (2) our courts have done so before, so (3) would you keep things under wraps, Monsieur le Juge, s’il vous plaît?  Pretty please?

Foreign officials are under no obligation within the Hague Service Convention to keep things confidential.  And in many places, sadly, Hague requests are handled by low-level bureaucrats at some point in the chain of custody** and they have zero motivation to keep things under wraps, especially in response to a U.S. judge’s edicts. What effect that has on the procedural posture of the case, I cannot say, but the court must understand that its authority to dictate terms ends at the shoreline.


* The agents I work with get it.  They understand the seal and they understand that, although they may not suffer any legal penalties in their home jurisdiction, they’ll never get another job from me.  But if I don’t have a trusted agent wherever you need to serve, I won’t even make assurances, much less guarantees.  Simply put, I can’t guarantee anything once the documents go abroad.

** For lack of a better word.

Ocho Rios, Standish77 via Wikimedia Commons

Squarely in the heart of the Caribbean Sea lies an island that has played host to countless movies, spring break junkets, and movies about spring break junkets.  The mere mention of Jamaica conjures images of Bob Marley, cabanas under palm trees, and scantily clad beachgoers who have escaped the frigid northern winter.  And lots of tour packages… which naturally leads to lots of litigation.

Jamaica is not party to the Hague Service Convention (HSC), although it has acceded to the Hague Apostille and Child Abduction Conventions.  Notwithstanding its absence from the HSC, serving documents in Jamaica 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.  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 Jamaican 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 Jamaican law.
  3. Private process server:  Significantly faster than a Letter Rogatory, and certainly on a more solid factual footing than mail.  A Jamaican 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– down there and here at home.

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


* Commonwealth procedures may govern the manner in which Canadian process should be served in Jamaica.  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 bobsled, did you?

Bayeux Tapestry – Scene 57: the death of King Harold. Myrabella via Wikimedia Commons.

Back when dinosaurs roamed the earth, I took Civil Procedure from a couple of highly talented professors.  One was among my favorite teachers of all time— he taught the concept of joinder with a shopping bag full of Beanie Babies™ and, for some baffling reason, a Jessie the Cowgirl™ doll from Toy Story 2.*  On the surface, that’s a very weird thing for a licensed attorney to put into a blog post, but the fact is, generations of JD’s from the University of Missouri-Kansas City know joinder cold because of Jeffrey Berman’s frequent flier card at Toys ‘R’ Us.  Third-party claims, cross-claims, counterclaims? Yeah, we got this.

That said, due to the compressed nature of that semester, and the reality that you just can’t learn everything you need to know as a 1L, we never really touched on certain basic concepts.  Like “how do you serve process?” or “why is the judge such a grumpy gus and how do I assuage his ire?” or “is it too late to get my LSAT fee back?”

Notably, we never really delved into the nature of subpoenas– neither the theoretical nor the practical.  They were mentioned in the broader discussion of discovery, where we had to understand arcane Latin phrases like ad testificandum and duces tecum.  But it was naturally assumed that if you wanted somebody to cough up evidence, all you have to do is send ’em one of these things.

Subpoenas serve a two-fold purpose.

It wasn’t until I was well into practice that I really gave the dual nature of subpoenas much thought, as I was talking to a client one day about serving a subpoena abroad.**  It turns out that, while her third-party in Country X was perfectly willing to produce (they detested my client’s party-opponent), they were deathly afraid of a lawsuit if they produced without a subpoena.  They wouldn’t do it without some coercive document that would force them to do what they wanted to do anyway.

It dawned on me that, sometimes, a subpoena is an offensive weapon– a sword– used to force someone to bend to your will.  At other times, it’s defensive, acting as a shield to protect an ally who has your back.  This is certainly not a novel idea– it’s a straightforward concept that should simply be understood.  I’d just never given it any thought before that conversation.

So how does the shield benefit somebody overseas?

Truth is, it really doesn’t… or rather, it can’t.  Keep in mind that a U.S. subpoena has no coercive effect abroad, unless it’s directed at a U.S. national– and even then, don’t be so sure it can be done.  If it’s merely a matter of effecting service to satisfy the court, and the third party is willing to produce, the judge may approve mere service.  Here’s the progression in the federal rules, with a problematic quirk:
  • Rule 45(b)(3) governs service of a subpoena abroad.
  • It incorporates 28 U.S.C. § 1783.
  • § 1783 impliedly incorporates Rule 4(f)– service “shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country.”

Okay, that might happen, or it might not (far too many variables to address in this space).  But note the fly in the ointment:  Rule 45 and Section 1783 apply specifically to “a United States national or resident who is in a foreign country”.  Neither of them delves into non-U.S. persons.

In short, there is no direct prescription for serving a subpoena on either third-party.  All you can really do is ask them.  Otherwise, you’re looking at filing a Hague Evidence Request or an old-fashioned Letter Rogatory— it would still take action by a foreign court to compel the production.

That compulsion has to be there in order for either the sword or the shield to do any good.

* COMES NOW plaintiff, Buzz Lightyear…

** Hint: theoretically, it’s possible to serve it, but that doesn’t make it effective.

The old Jackson County Courthouse, Independence, Missouri.  We don’t use it anymore, and Independence isn’t the county seat anymoreMT Images via Wikimedia Commons.

A routine question from clients across the continent– especially those in my own state*:  “Hey, Aaron, the clerk says I have to tell the court who is going to be serving the documents in China or they won’t issue my summons.  Could you get me the process server’s name and qualifications so they can appoint him?”

There’s a lot loaded into that, with some compelling responses.  The primary response: No… you and I don’t get to know that.

The client will sometimes get a clerk who insists that s/he has the authority to determine who is qualified to serve, and that if I think otherwise, I have to cite an authority compelling his/her issuance of the summons without knowing who’s going to do it.  This makes me just a bit more than combative.

For service on defendants in Hague countries, I usually reply thusly (to my client):

  1. Who serves is dictated by the judicial authorities in the foreign country, by virtue of the Hague Service Convention.  If the clerk’s office disagrees, refer them to Article VI, paragraph 2 of the U.S. Constitution and The Honorable Sandra Day O’Connor.
  2. Even if that weren’t the case, China (or any other civil law jurisdiction, for that matter) doesn’t even have process servers in the sense that we common law practitioners understand them.
  3. Moreover, no foreign court or government is going to bow to the will of a Missouri court– or any U.S. court.  Really.  Imagine the shoe on the other foot– can you picture the reaction a U.S. judge would have to some Chinese or Venezuelan or Italian court dictating his/her actions?
  4. At that, there’s a 99.44% chance that even the Central Authority can’t tell you in advance which random judicial officer is going to be handed this assignment nine months down the road.
  5. But above all, you want me to cite a case or statute that gives you the authority to issue the summons?  How about you cite a statute or case that gives you the authority to deny it? 

In most cases, the rule is awfully clear:  the clerk shall issue the summons.  (Some rules say shall issue, others say must issue… either way, it’s an imperative.)

The best illustration is right here in Kansas City, where (contrary to Rogers & Hammerstein) not quite everything is up to date.  Yet Jackson County is not unique across Missouri, and Missouri is not unique nationwide.  My criticism isn’t just directed at my own.

See, our court long ago had to assert a bit of control over who could & couldn’t serve process in Jackson County– anybody who’s seen Season 4 of Fargo*** can connect the dots as to why.  KC was Vegas before Vegas was Vegas, but without the regulation.  On its face, the court’s appointment regime created a sort of guild monopoly, in which a process server had to at least pass a de minimis background check.  Even today, if you’re not on the approved list of Jackson County process servers, you can’t serve Jackson County process in Jackson County without being appointed.

Fortunately, neither getting on the list nor getting an ad hoc appointment is very difficult– the barriers to entry are minimal, and the “guild” doesn’t actually meet or hold sway over anything.  But the authority to limit who can and who cannot serve ends at the county line.***  Outside the county, our courts really have to defer to the rules in place “over there”, whether that’s in a neighboring county, in a sister state, or in another Hague country.

Put another way, U.S. courts lack the authority to dictate what goes on in other Hague-applicable jurisdictions, as long as the methodology comports with due process.  Getting into the tall weeds of appointments does not fit with the requisite procedure.

[All that said, note that U.S. courts do have the authority to commission laypersons, specifically non-lawyers, to sign Hague Request forms.  But that goes to who’s asking for service, not who’s actually serving.  Those are completely different concepts.]


** Chris Rock as Loy Cannon.  He gets my nod for the Emmy this year.

* Mercifully, I’ve never had to deal with this at the federal level.  I’ve had to deal with summons modification refusals (like in bankruptcy court), but I don’t remember having a federal court clerk insist on knowing who is going to serve.  The simple reason why?  Federal Rule 4 doesn’t care.  Any non-party adult can serve a federal action here in the U.S.

***  Rule 4.9 – Special or Private Process Services

1. Any person serving process within Jackson County, Missouri, except those authorized to serve process for the Jackson County Prosecutor’s Office, must establish by affidavit that he or she meets the qualifications provided in section (3)(b) of this rule, as stated below.

Trafalgar Square, London.  Just a few blocks from the Royal Courts of Justice and England’s Central Authority.

Client queries: “hey, Aaron, the clerk says the Hague Service Convention requires certified copies of the Summons and Complaint and something called an Apostille.  Where do I get that?”

I get some variant of that question pretty regularly, most often from colleagues within just a few miles of me.*

For starters… no, the Hague Service Convention says nothing of the sort.

Sure, at one time, some Hague Central Authorities required court-certified copies to be submitted (they questioned the validity/authority of a document rolling off my laser printer), but as e-filing has become a global norm, rather than an outlier, this problem has faded away.  And sure, some local judicial authorities balk at the lack of all the stamps and ribbons and pretty little bows that adorn legal documents in their systems, but Central Authorities seem to coordinate pretty well with the locals nowadays, and have all but eliminated the problem.

In fact, the Hague Service Convention specifically abrogates the need for either certification or an Apostille.  Article 3(1):

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.

(Emphasis mine.  For the record… legalisation?  That isn’t a typo.  They spell it with an S in diplomatic English.  Personally, I think the Z ought to be there, but they didn’t ask me.)

If you’re curious about what an Apostille even is, see here for a fun primer.  They’re awfully handy instruments to confer legal effect on documents sent abroad, but they’re wholly unnecessary for Service Convention purposes.

Point is, if the clerk tells you that special formatting or authentication is required to properly serve a defendant in a Hague jurisdiction, that’s simply incorrect.  All they need to do is format the summons as if it’s to be served on the other side of State Line Road, et voilà.  The docs are ready to send my way (or a translator’s way, as the case might be).

What gets served (and in what format) is determined by the forum court’s own rules… the Hague Service Convention only delves into how.


* Why this stuff happens most often in my own county is beyond me.  Apparently, not quite everything is up to date in Kansas City.

The most common question I get, aside from “how much is this going to cost?” and “how long will this take?” is this:

“What does the Hague Service Convention require me to serve?”
The quick answer: nothing.

No, really.  The Convention doesn’t require service of anything in particular– it’s a roadmap, rather than a checklist.  Article 1:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

As long as there is “occasion to transmit abroad for service”, the Convention makes no mention of what is to be served.  It really only gets into how.*  Put another way, it only tells you how to get there, rather than what you should pack in your suitcase when you want to hit the open road.

“So again, smart guy,” inquires the client, “what do I have to serve?”

Well, in broken Latin, that’s determinatae a lex fori.  Determined by the law of the forum.

Quite literally, look to the rules of the court that is hearing the case– but bear in mind two things:

  1. Only serve what is REQUIRED.
  2. Serve EVERYTHING that’s required.
Our luggage, about to disembark from a cruise in Seattle… back when travel was still possible.

If you have to serve (1) a summons and (2) a complaint and (3) an ADR Information Packet on a defendant in Paris, Texas, you’ll have to serve all three documents on a defendant in Paris, France.

Berlin, North Dakota… Berlin, Germany.

New York… (Old) York, England.

(You get the picture.)

That’s something you have to determine based on federal or state rules, as well as the particular court’s local rules– because they often go beyond the broader requirements.

Where the Hague Service Convention comes in is to make sure the “how” is taken care of properly.  Just be sure to send documents in duplicate where required.


* That said, be very wary of serving anything discovery-related, bearing in mind that you can’t merely “serve” a subpoena if you want it to actually work.  The Service Convention does precisely zilch to confer coercive effect on subpoenas.

Last month, in Only serve what is REQUIRED, I suggested insisted that service costs can go through the roof if plaintiff’s counsel seeks to serve documents that aren’t strictly mandated by local rule.*

Routine practice dictates that, along with the Summons and Complaint, additional documents must be served as well.  ECF Rules, civil cover sheet, the particular judge’s individual rules of practice, etc… those ancillary docs that have nothing specifically to do with the case at bar, but which are served as a matter of course, usually to deflect any hint of a 12(b)(4) motion.  Unfortunately, those documents can sometimes double or even triple the cost to translate everything going to Germany or Japan or Mexico.  Thousands of dollars spent on “well, we’ve always done it that way.”

My response: no.  Just… no.  If it’s not required, leave it out.

But the flip side is also true:

MAKE SURE YOU SERVE EVERYTHING THAT LOCAL RULES REQUIRE.

Just before Thanksgiving, a client emailed me to say “hey, Aaron, could you add the court’s ADR Information packet to the service?  We think we should have included it.”

Urgh.  This came a mere two hours after I’d sent the process server an affidavit to execute; service had already been completed.

Well, is it required? I asked.

“Yep.  Local Rule TK421 mandates it.”

Well, that’s a silly rule, I thought.  Then again, it would be even sillier to just ignore it and hope the defense counsel didn’t notice.

As it turned out, our (successful) quest for speed ended up costing my client a second round of fees because the service packet was incomplete.  Mercifully, the defendant was in Australia, where costs aren’t excessive, so it didn’t cost the attorneys a whole lot more to have the process server tee it up again with a fresh set of docs.  But if we’d had to serve in India or Mexico or any number of other places, the bill would have run up considerably more.

The takeaway: get everything assembled before we serve.  Late additions are costly.

 


* Worth noting, Fed. R. Civ. P. 4(c)(1) requires service of the Summons and the Complaint (which naturally includes exhibits), and that’s it– an exhaustive list.  The same pairing is required by many state rulebooks.

The Peace Palace, The Hague. (This shot was taken in December, 2019, as the Rohingya genocide case was being argued before the ICJ.)

“They tell me I have to serve through The Hague.”

I hear that phrase at least three or four times a month, and while I forego the inclination to offer that Hague requests don’t actually get sent to Holland (unless they’re being served there), I do have to clarify a couple of thoughts on the matter very early in every conversation.  Above all, if a defendant is to be served in a fellow Hague Service Convention jurisdiction, the service has to comply with the Convention– simple as that.  And if anybody tells you otherwise, introduce them to the Honorable Sandra Day O’Connor and Article VI of the U.S. Constitution.

More specifically, tell them to read Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). It’s a humdinger.

Beyond that, the concept of “Hague Service” can mean quite different things depending on where the defendant is located.

To my callers’ original point, yes– service in a Hague country must comply with the treaty.  But that means different things in different places.  In some jurisdictions, that compliance doesn’t necessitate the involvement of a foreign government.  In others, the involvement of the foreign government isn’t just a good idea; it’s compulsory.  Once you’ve identified where the docs are going, a bit of strategic analysis may be necessary.  Such analysis also may not be possible.  Some examples:

  • China (other than Hong Kong and Macao):  forget any analysis, because there’s only one way to properly do it… an Article 5 request, using a standard Hague Request Form, commonly called a USM-94 here in the states.
  • Germany: likewise.  USM-94 or forget it.
  • Switzerland: ibid.
  • Mexico: same.
  • Japan, Korea, India, Greece, Norway… yep.  Getting the picture?

There are many others where mail service is available under Article 10(a)– although I contend that it’s a horrible idea under the Convention,* latched onto only by lazy or cheap lawyers who aren’t overly concerned about actually proving service.  In many places, you really can just hire a process server or local counsel or a local bailiff to serve.  Among them:

It bears repeating… the most important bit of information in serving process is “where?”  Nothing else matters unless the defendant can be located.  And once located, analysis of options may or may not be possible.


* In some rare situations– only in non-Hague jurisdictions– mail is actually the best starting point, but only because no truly better options exist.