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.

(Wikimedia Commons)

[Author’s Note: this applies to federal practice!]

Another quirk comes across my desk now and again that seems, on the surface, to be fairly prophylactic.  Realizing that the Hague Request I filed in China months ago will take a while longer to come back, my client petitions the court to extend the Rule 4(m) service deadline by another 90 days.  This is pretty pro forma stuff, so the judge says sure, that’s okay.  Another 90 days go by and the court wants to know just what in the hell is going on here, counsel… why haven’t you gotten this served yet?  Didn’t I grant you an extension already?

Client comes to me and asks for an affidavit in support of his motion, confirming for the court that everything is a-okay , the wait is normal, and “would Your Honor pretty please grant my client’s motion to extend?”

Of course, I’d be happy to do that, but here’s the problem with such an affidavit and motion:  THERE’S NOTHING TO EXTEND.  The 90-day deadline in Rule 4(m) does not apply to you.  Full stop.  I’ve written about this issue before, in FRCP Amendments clear up 4(m) just a bit and in You’ve got a friend in 4(m).  From the latter post:

Outside the U.S., plaintiffs are subject to a reasonable diligence  standard, which usually just means that they have to start the ball rolling within 90 days.  As long as they’re not dilatory (I had to look it up… they’re not dragging their feet), even the grumpiest of judges isn’t going to dismiss the case, especially if the defendant is in one of the single-method/longer-wait countries like China or Mexico or India.  This is especially true amid the Covid-19 pandemic– judges understand.

That rule, in its entirety (pertinent in bold):

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

Hon. Robert Sanders, of “jibber jabber” and “poopycock!” fame.

Right at the outset of a service project, I tell my clients (lawyers all) that service requests to many countries will take well over a year to produce a proof– sometimes two years– and that’s not a problem because of the safe harbor in the last sentence of 4(m).  But when you ask the court to extend a non-existent deadline, you’re effectively telling the court that the deadline applies to you.  That’s a huge problem where the judge is a grumpy fellow who doesn’t get it.

The best course of action is simply to notify the court: “Now comes plaintiff to record the submission of a properly formatted Service Request to the Central Authority designated by (country’s) declarations to the Hague Service Convention, and to advise the Court that plaintiff’s litigation support attorney expects that the procedure may take two years to complete.”  Attach a copy of the Request Form and shipper’s delivery receipt, et voilà.  You’re done.

If the judge barks at you six months later, refer Hizzonner to the plain text of 4(m), and if need be, to the seminal case interpreting it in overseas cases, Nylok Corp. v. Fastener World Inc., 396 F. 3d 805, 807 (7th Cir., 2005)…

The explicit language of this rule makes it very clear that the 120-day(*) limit is inapplicable in cases involving service in a foreign country. This rule seems to recognize that the timeliness of foreign service is often out of the plaintiff’s control.  (…)

Generally, a plaintiff is required to serve process upon defendants within 120 days after the complaint is filed. Rule 4(m), however, provides an exception in cases where service must occur in a foreign country.

Pretty straightforward stuff– stuff that eliminates the need to extend anything.  Recognize that the reasonable inclination to extend actually ends up causing more problems than it solves, and leave it alone.


* The 120-day limit referenced in Nylok pre-dated the 2015 amendments that reduced the time to 90 days.

He’s grumpy. But he calls the shots. Not some smart-mouthed fellow from out of town.  And he certainly doesn’t cotton to your unfamiliarity with the rules, counselor.

[UPDATE, December 17, 2020… a follow-up/parallel post, Serve EVERYTHING that’s required.]

This practice gives me a chance to work with some great translation providers.  I go back to them regularly because they not only provide quality work, but they’re also ethical in dealing with clients, and that means the world to me.  Not all providers are that way, but my people are rock solid.  As such, my people don’t mind when I say to a caller, “hey, you can keep your translation costs down by only serving what is required by venue rules.”  That matters to my clients (all lawyers & law firms) who need to serve abroad.

Earlier this fall, in Keeping Translation Costs Down, Part Three, I ranted a bit, because my clients often come to me with a laundry list of documents that are served here in the U.S. as a matter of course, but that don’t strictly have to be served, here or abroad.  Loudmouth that I am, it’s just not in my nature to shut up about it, so I’m going to ask, “do local rules really require that you serve Judge Haller’s Rules of Lawyerly Dress Code Applicable to Pro Hac Vice Attorneys?!”

Look, folks, if you’re not required to serve a document, don’t serve it.

Yes, yes, I understand that if you’re serving in Miami or Seattle it’s not a big deal to have the process server kill another tree.  But if your defendant is in Düsseldorf or Yokohama or Buenos Aires, you have to translate that thing.  The Hague Service Convention (or, more accurately, various countries’ declarations thereto) mandates translation in just about every country that didn’t once have the Union Jack flying over it.  Whether German or Japanese or Spanish, at $112 a page, that’s a bit silly when you can just serve it on opposing counsel after he appears.

Fed. R. Civ. P. 4(c)(1) requires service of the following:

  • Summons
  • Complaint

END. OF. LIST.  Many state rules say likewise.

Understand, of course, that exhibits are part of the Complaint, but the Civil Cover Sheet, ADR packet, standing orders, Covid-19 orders, all the extra stuff that you might tack onto a domestic serve to cover your bases… is going to cost you unnecessarily.  So leave it out.*

Just serve what THOU SHALT SERVE under the rules and keep your translation bill to a minimum.


* Pay attention to the local rules, which may actually require you to serve all that other stuff.  Keep in mind, though, that the rule may say you have to serve a particular document, but it may not indicate when.

 

Here’s the progression of events when we file a request for service under Article 5 of the Hague Service Convention:

  1. Have the documents translated into the language required by the destination country (or as necessary under the defendant’s right to due process).
  2. Fill out the Request (the vaunted Form USM-94 in U.S. practice).
  3. Send everything to the appropriate Central Authority.
  4. Wait.  (This is where service happens.  It’s also where the Authority generates the Hague Certificate.)
  5. Receive proof of service.  Hopefully.  After a few weeks, a few months, or (depending on where it went) a couple of years.  <– That’s not a typo.

To be sure, in the vast majority of cases, that progression happens without a hiccup.  The world’s governments have been doing this thing since before I was born (I’m a ’71 model), and they really do have it down to a system– albeit an incredibly slow one in places.

But in a single day at the end of last month, no fewer than four of my clients pinged me to say “hey, I just got off the phone with opposing counsel telling me their client was served.  Can you confirm that?”  [Short answer: no.]

“Well, when are we going to get a proof?”  [Short answer: when the foreign Central Authority sends me one.]

See, the fact is, things just don’t work as quickly overseas as they do here on this vast continent called North America.  U.S. and Canadian lawyers are used to having our defendants served within a matter of hours.  Here, it’s a fairly pro forma exercise unless the defendant is a sneaky sort of human being, conniving to evade our wily agents of justice.  But add a bureaucratic procedure to the mix and even our wheels turn more slowly that we’d like.

What happened to me four times in a day last month is routine– truly not out of the ordinary.  And my clients are justifiably perplexed when I can’t tell them their defendant has been served, while their opponent clearly seems to know all about it.

It’s really very simple.  Let’s lay a hypo over the progression outlined above.  Say you’re a litigator who files a lawsuit in the U.S. District Court for the Western District of Iowa, naming a Korean corporation and its Arizona subsidiary as defendants.  The Arizona outfit gets served about twenty minutes after you email the documents to a process server in Phoenix.  Serving the Korean mother ship takes more time and effort (not to mention cost) but, wise professional that you are, you hire a consulting attorney to coordinate the matter for you.  We’ll call that guy Moses, just for funsies.*

  1. Moses has the documents translated into Korean.  (The Koreans require translation, regardless of the defendant’s competence.)
  2. He fills out the Request form.
  3. He sends everything to the Central Authority in Seoul.
  4. You wait.
  5. Three months later, your phone rings.  It’s the same guy you talked to in Arizona who represents the subsidiary, who tells you he represents the parent as well, and demands that you produce a proof of service or he’s going to file a 12(b)(5) motion.
  6. You call Moses to discuss the matter, and he assures you that this is perfectly normal.  You can advise opposing counsel that he has 21 days to answer the Complaint, and should really take a look at Rule 4(l)(3) before spouting off.]
  7. Another two months later, Moses sends you the proof of service that just rolled into his office from Seoul.  Having received no answer from the fellow in Arizona, you staple a default motion to it before filing it.

It is perfectly normal for your opposing counsel to call you before I even know that service has been effected.  When I say that you may know before I do, that’s because it happens all the time, and is no reason for alarm.


*  In my twenties, I served on the board of my church.  One Sunday, we had a guest priest sub in for the Rector, and over a drink after the service (Episcopalians do it right), he said to me in a very High Church accent, “Aaron, did you know that Moses talked with God about godly things, but Aaron argued with God about worldly things?”  Um, yyyyyeah.  That sounds about right.


(Image credits, both via Wikimedia Commons:  crossed fingers by Evan-Amos, telephone by Steimes.)

 

 

The office of New Hampshire’s Secretary of State. Royalbroil via Wikimedia Commons.

A slew of cases have come across my desk lately, involving plaintiff attorneys who have ostensibly already served foreign* defendants via statutory agents in the forum state.  After plaintiff’s counsel spends several thousand dollars to defeat a motion to quash, most of them conclude that it might have just been cheaper in the first place to serve the defendant in the foreign jurisdiction instead of via the statutory agent.  (I make that argument regularly on the few listservs to which I subscribe– why not save yourself the aggravation and just serve the defendant where they are, instead of going the seemingly cheap & easy route?)

The best examples of these “statutory agent” situations are (1) foreign entities doing business in the forum state and (2) non-resident motorists who drive in the forum state.  For instance, let’s say a statute says specifically that “any act by a foreign entity to conduct business in this state shall by implication appoint the Secretary of State as its attorney in fact for the purpose of service of process in any action brought in the courts of this state.”

  • In short, if you make money here, we can serve you here via the SoS.
  • Or, the corollary, if you drive here, we can serve you here, perhaps via the DMV Director.
  • Or, in the case of Volkswagen in the 1980s, if you form a subsidiary here, we can serve you here via that subsidiary.

It seems pretty fair and it seems pretty straightforward.  But looming large over the analysis is a due process question… which is to say, maybe it’s not so fair after all.  In my March 2017 post, “You can’t simply serve a U.S. subsidiary,” and two weeks later in “You Can’t Simply Serve the Secretary of State,” I cautioned against assuming that serving via these statutory agents was compliant with due process and with the Hague Service Convention.

The threshold question:  where does lex fori deem service to have been effected?

  • If service is deemed to be effected in the forum state, you still have to undertake a due process analysis.  Is it reasonable to calculate that the statutory agent will do what’s necessary to ensure that the defendant is actually afforded notice and an opportunity to defend?  (See Mullane.)
  • If service is deemed to be ultimately effected upon delivery in a foreign country, you have to analyze whether the Convention applies, and then you have to examine what the statutory agent actually does with it.
    • Does the statutory agent dig deeper to see if translation is required?  (Highly unlikely.)
    • Does the agent undertake to translate the documents?  (Bet against it.)
    • Does the agent properly convey the documents to a foreign power?  (Odds are, they don’t read this blog.)
    • Does the agent even have the authority to make such a request?  (Again, highly unlikely.)

In all probability, the agent simply drops it in a FedEx box and calls it good.  In much of the world, that doesn’t get you where you need to be.

Past the threshold, let’s say you do successfully serve the statutory agent.  Then what?

  • Wait 21 days (the time indicated in a federal summons) and then simply move for a default?  Hardly.  Any judge worth his or her salt is going to inquire about your methodology.  You’re going to have to demonstrate that the defendant is truly aware of the proceedings and is merely blowing off the obligation to appear.  Mullane still looms large.
  • Or let’s say the defendant actually does show up, but in a limited appearance to quash your service.  What then?  You could spend far more to win that battle then you would spend to simply serve the defendant directly in the first place.

Yes, you may identify a statutory agent, but that doesn’t mean the agent would be a truly effective conduit for service.  In a whole bunch of situations, it still ends up being less costly to serve overseas pursuant to the Convention.

  1. Defense counsel will spend money to argue, so it’ll actually be cheaper for you to just hire somebody like me.
  2. In a PI case, outside assistance counts as an expenseyour DIY effort to serve by yourself comes out of your contingency.
  3. You get a default judgment because the statutory agent doesn’t properly forward the summons… then what?  Go overseas to enforce the judgment?  Your odds on that are pretty slim.

It’s truly not so arduous to jump through some Hague hoops, especially if you have help (wink wink, nudge nudge).  And jumping through those hoops can really prevent headaches down the road.


* Foreign can mean different things.  There’s foreign in the “you need a passport to go there” sense, and foreign in the “across State Line Road” sense.  The former is general in nature, while the latter is a term of art delineated by interstate and international boundaries.  In the statutory sense, use the term of art.

Manila– a thriving, modern metropolis. Patrickroque01 via Wikimedia Commons.

I say all the time that we’re not building rockets here.  But we are building a ship of sorts, and a leaky ship means lost cargo, and perhaps the inability to reach port.  Serving process in the Republic of the Philippines is now subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Noting that the Foreign Ministry has yet to submit declarations to the Hague Conference on Private International Law, the following guidelines are drawn from Administrative Order No. 251-2020, by the Supreme Court of the Republic of the Philippines.

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 in the Philippines and have it actually do what you want it to do.  You have to file a Letter Rogatory, which is dramatically different from serving a summons or notice.

Now, here’s how service of everything else is done…

Article 5 Service

  • Again, no declaration to Article 5(3) discusses translation, but the Supreme Court’s Order indicates that documents must be in either English or Filipino.  Your docs are in English, 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, along with the requisite advance fee.
  • Sit tight. It may take a while from submission to return of proof.  The judge is just going to have to accept that fact, because there is no viable alternative…

Article 10 alternative methods

  • Forget them, because without any declarations to Article 10, it’s impossible to tell the forum judge with a straight face that they’re valid.  True, Article 10 says specifically that “Provided the State of destination does not object, the present Convention shall not interfere with…” those methods.  It could be argued, then, that because they haven’t expressly objected, alternatives are valid.  I wouldn’t take a chance just because a quicker & cheaper alternative* seems plausible.  There is a mechanism in place that leads to essentially bulletproof proof of service.

The Philippines’ declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Seriously—that’s all there is to it in the Philippines, but don’t get excited just yet.  The method is straightforward and simple, but this is a brand new procedure for the Philippines’ courts.  Until there’s a track record, predictions are impossible.

 


* I’m looking at the mailman here.  Quick & easy is a bad idea.