Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application. "i_am_jim" via Wikimedia Commons.
Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application.  Image: “i_am_jim” via Wikimedia Commons.

“So, Aaron, what kind of law do you handle?” ”

Anything in litigation that crosses a border.

“Oh.  Immigration?” [After a few dozen times hearing that, I revised my answer.]

Procedural issues in litigation that cross borders.

They still ask if that means immigration, but no.  No, it doesn’t.  At least not with regard to the Hague Service Convention.

However, an interesting development out of Texas last week… a naturalized U.S. citizen was denaturalized (had his citizenship revoked) because he’d lied on his application some twenty years ago.  From the U.S. Immigration & Customs Enforcement press release:

Jose Arizmendi, 54, a native of Mexico, pleaded guilty in April 1996 to aggravated sexual assault of a child in the District Court of Harris County, Texas. When Arizmendi applied for naturalized U.S. citizenship later that month — and again when he was interviewed in connection with his application in October 1996 — he answered “no” when asked if he had “ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance excluding traffic regulations.” Relying on this answer, the U.S. government granted his naturalization application and Arizmendi became a U.S. citizen later that year.

Of course, one has to wonder why he wasn’t incarcerated on the aggravated sexual assault of a child plea– and one has to wonder why the Immigration & Naturalization Service (ICE’s predecessor) didn’t at least run this guy’s prints before giving him the right to vote… but I digress.

As it turns out, when the U.S. Attorney initiated denaturalization proceedings against him, he was serving a hefty prison sentence in his native land, so the Department of Justice had to serve him under the Hague Service Convention.*  Of course, Mexico can be a tough nut to crack— even under the best of circumstances, the procedure takes 9 months or more to receive a proof of service from the Mexican Central Authority.  But he wasn’t going anywhere, so a delay really didn’t grind the wheels of justice to a halt.  Regular plaintiffs don’t enjoy the same ability to wait it out, but they have no choice.

 

* I wonder if the Hague Service Convention is truly applicable here.  By its own terms, the treaty applies to civil and commercial matters only.  Egypt, for instance, at one time refused to serve divorce papers on the grounds that it considered family law outside the scope of “civil”.  Many authorities in Germany reject requests to serve tort complaints from U.S. jurisdictions with split recovery statutes; they consider such actions at least partially punitive/retributive in nature, so quasi-criminal rather than civil.  It seems to me that a denaturalization action is quasi-criminal, quasi-administrative… not wholly civil.  Still, Mr. Arizmendi is no longer a U.S. citizen no matter how you slice it.

 

Coolcaesar via Wikimedia Commons.
Coolcaesar via Wikimedia Commons.

“Right” is an arguable concept in this instance, but bear with me.

Among the alternative methods articulated in Article 10 of the Hague Service Convention is service by “postal channels.”  In other words… good old mail service.  That generally includes private couriers like FedEx, UPS, and DHL, who are just as reliable as– if not more reliable than–the U.S. Postal Service.  Check that… they’re unquestionably more reliable that the Postal Service, so much so that the USPS uses FedEx as its overseas contractor.  Most of us just cut out the middleman in the rare instance that we do use mail to serve abroad.*

Of course, I’ve railed before against the inclination to use mail as anything but a last resort.  Regardless of its legal efficacy, mail presents factual challenges (ie: prove it, pal) that may not be so easily overcome.  It only seems the easiest/cheapest/quickest way to go on its face.  Sure, it may be cheaper at the outset, but if it cannot be proven up, not only is the shipping cost wasted, but so too is the time taken up before concluding that it’s not going to work.

But if you must serve abroad by mail—and sometimes you really must—do it the right way.

In his latest post on the very excellent Letters Blogatory, Ted Folkman delves into the linguistic weeds over the meaning of Article 10 in tandem with FRCP 4 and the recent Water Splash v. Menon decision.  Article 10(a) permits litigants to serve by postal channels, absent objection by the destination state (think Mexico, China, Germany, and more).  Water Splash resolves a circuit split to definitively state that 10(a) is not nullified by a drafting error.

But neither of these expressly authorizes mail service.  That is, neither 10(a) nor Water Splash point to the local post office and say “yes, counsel, go there, regardless of forum rules.”

This an incredibly picky distinction, but it’s a critical one.  In Ted’s analysis (with which I agree wholeheartedly), the fact that the Convention permits mail service assumes that it must be valid under forum rules to begin with.  If a particular state’s rules do not specifically empower a litigant to serve by mail in New York or Nevada, then the Convention does not magically make it so in the Netherlands.

Water Splash doesn’t get into the weeds—and Ted rightly criticizes Justice Alito’s otherwise spot-on opinion for avoiding the authorization/permission question.  Then again, Water Splash was a Texas state court case, so the question wasn’t truly at the heart of the dispute.  [Some dicta would’ve been nice.]

Article 10(a) likewise does nothing affirmative.  The text of Article 10 really says that, as long as the destination state doesn’t object, the Convention won’t interfere with a litigant’s use of mail service.  It does not say that a litigant may use it.

But FRCP 4(f)(2(C)(ii) does say that a litigant may use it.  Under certain conditions.

So the question for real practice is this:  how do you do it the right way?  It’s necessary to parse Rule 4(f), particularly 4(f)(2).

Now, 4(f)(1) really just codifies the Volkswagenwerk Aktiengesellschaft v. Schlunk decision—essentially, if the Hague Service Convention applies, adhere to it.  And it uses the word “authorizes”, but that’s fairly useless, because the Convention only authorizes Central Authority service (though I’m not 100% sure it even does that).  Again, it doesn’t authorize mail—it just declines to interfere with it.

So 4(f)(2) is the operative part:  “if there is no internationally agreed means, or if an international agreement allows but does not specify other means…”

Sections (A) and (B)… not really applicable here, because the whole point of the Convention is to define how the destination state wants it done, and render Letters Rogatory unnecessary.  The former puts you into Article 10(b) or 10(c), while the latter is moot in Hague situations.

But (C) is where the rubber meets the road, folks.  Specifically:

using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt

Pretty straightforward stuff there.

The practice tip takeaway… follow 4(f)(2)(C)(ii) and GO THROUGH THE CLERK.

Okay, it’s marginally arguable that you have to.  Okay, the clerk may look at you like you have three heads.  Okay, you might prevail over the defendant’s 12(b)(5) motion [assuming that you can overcome a massive fact problem].

But it’s a hell of a lot cheaper to just do it right in the first place.  Just get the documents together for the clerk, print a shipping label, and hand them the envelope unsealed.  They’ll take care of the rest.

* Sometimes, mail really is the only reasonable option, so my criticism of it is not absolute.  And to be sure, I charge more for mail service that I do for regular Article 5 service– it requires a whole lot more care and feeding.

The Coloseum.
The Colosseum.

The Hague Law Blog isn’t just about nuts & bolts lawyering.  A bit of a deviation today… with an offer you can’t refuse.  At least, not if you like to travel and fulfill your licensure requirements at the same time.

In Missouri and Kansas (and, I’m sure other jurisdictions), this is Continuing Legal Education Crunch Time.  Our credit year ends next Friday, June 30th (with reports due July 31st), and lawyers across both states are scrambling for hours.  They needn’t stress, really, because a cottage industry has been set up around the year-end rush; the CLE office at my alma mater, UMKC Law,* not only offers a host of live programs throughout May and June every year, but webinar and web replays as well.  (See here for the full range.)

But why stress about it at the end of the reporting year?

Why scramble?

Why not get a full year’s CLE hours and see the world at the same time?

Join us in Italy this November.

Peggy and me in Venice during UMKC's 2015 Rome CLE. Did I mention the free days in the middle?
Peggy and me in Venice during UMKC’s 2015 Rome CLE. Did I mention the free days in the middle?

Seriously.  CLE Abroad is the best possible way to do it.  In the morning, a few hours of classes and court visits, led by American and Italian practitioners and scholars, and in the afternoon, a few hours of ruins, museums, and the best cuisine Italy has to offer.

I’m not joking.  This really is the best way to get your hours (I even give a live-version lecture of topics from this blog), see the world, and save a few bucks** in the process.

See program details here.  (And then email Peggy to sign up.)

Vieni e unisciti a noi, amici.

* Full disclosure:  my wife is a professional program coordinator at UMKC’s CLE office, and I worked there during law school (and that first excruciating year after).  This plug is not only shameless, it’s issued with pride.  I wouldn’t be where I am today without having had the opportunity to work there, and I get the good fortune of traveling every year because of it.
** Group travel rates keep the price tag down, of course.  And the question always comes up: “can I deduct this?”  My answer:  “I don’t know.  Ask your tax guys.”

Public beach below 'Quai des États-Unis' in Nice, French Riviera. Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)
Public beach below ‘Quai des États-Unis‘ (how’s that for irony?), Nice, France.  Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)

(Hint: foreign holidays trump the judge.)

The prevailing rule: a plaintiff’s lawyer has to get things done in a timely manner (ie: yesterday) or the court gets irritated.  The judge wants a brief before she goes to bed.  The clerk’s office reminds you that they’re closing early in honor of Truman’s birthday tomorrow (in Missouri, we’re just wild about Harry).  It’s on you, counsel, to make sure things get executed in a timely manner, or your case gets kicked to the curb.  But when you’re serving a defendant overseas, you can’t always do that.

Now, it can sometimes be done quickly and under pretty odd circumstances.  My guys in London served a defendant in the midst of massive congestion six blocks from the London apartment building fire last Wednesday—as the event unfolded.  Once in a while, speed is possible, but it can almost only happen quickly in (1) other common law jurisdictions that (2) don’t prohibit the use of a private process server.  Throughout most of the civil law world, service can only be effected by a judicial officer pursuant to a request to a Hague Central Authority.  And depending on where that Central Authority finds itself, service could take weeks, months, even a year or more.  (<– That is not a typo.)

Judge Haller has zero tolerance for your crap.
Judge Haller has zero tolerance for your crap, Mr. Gambini.  He is not a jolly fellow.

To make matters worse, certain holiday seasons extend the wait even more.  Several come to mind, and they can really delay things, even more than the timetable that would normally frustrate the judge.

A little one and four big ones:

(1) The bank holiday

Occasionally, the United Kingdom and other members of the Commonwealth shut down their banking systems and tell the financiers to take a day off, Nigel– the money needs a moment to breathe.  To be sure, bank holidays are a thinly-veiled strategy to maintain religious holidays (Easter Monday, various saints’ feast days, etc.) in a secular way, but still… when speed is called for and possible in common law jurisdictions, things can be derailed a bit.

In a way, some bank holidays are no different from MLK Day or Presidents’ Day in the U.S.—they’re specific to our calendar, and nobody else observes them.  Not a huge delay, but a bump in the road that frustrates litigants who expect service to be effected on an English defendant first thing in the morning.

(2) Août

France shuts down in August.  No, I mean roll up the sidewalks, Margaret, we’re closed.  They have a very un-American view of relaxation time, re-booting the senses, and flushing out all the stress and frustration that make the American economic engine just hum along.  The whole country takes the month of August and goes to the beach.  True, somebody has to work the beach, but they import people for that.  And Pierre, the new guy, gets to stay home and run the shop while the boss and all the other staffers are recharging their batteries.  [Sorry, Pierre, the Americans didn’t get the memo and came to Paris anyway, so someone still has to drive the tour bus.]

What does this mean to U.S litigants who file Hague requests in France?  Simple: your paperwork will be delayed at least a couple of weeks—even if you get it submitted before Bastille Day (July 14th).  If you expect a proof within three months, better make it four in the late summertime.

Christmas Market, Cologne. Daderot via Wikimedia Commons.
Christmas Market, Cologne. Daderot via Wikimedia Commons.

(3)  Weihnachten

Christmas is huge in Germany (and in Italy and Switzerland and throughout Europe, really, but they don’t put the brakes on the procedure like the Germans).  So huge that, contrary to the stereotype of Teutonic efficiency, Germany turns rather French around the middle of December, and they don’t show up for work again until January 7th.  They celebrate all twelve days, complete with the partridges and pear trees and ladies dancing.

Like August in France, tack on another couple of weeks, at least, until you get a Hague Certificate back from German authorities.

(4) 春节 (PRC), 春節 (Taiwan)

The Chinese New Year or, as the Chinese themselves call it, Spring Festival.  Imagine a billion and a half people trying to get home for dinner, all at the same time.  The worst nightmares of U.S. holiday travel are multiplied by a factor of four, because everybody is compelled by tradition and respect and obligation not only to go see Mom, but to go and pay respects to their ancestors as well.  It’s like somebody took Mother’s Day, Father’s Day, Grandparents’ Day, Memorial Day, Thanksgiving, and Christmas, and crammed them together into a two-week party culminating with a Lantern Festival.  It’s big.

Now, to be sure, the Chinese don’t take off the entire two weeks (they espouse the same work-until-you-drop-dead-on-the-factory-floor philosophy that made America great), but it slows things down a bit when you need to file a request for service… they get delayed, much to the chagrin of your judge.

5)  Shalom Aleichem*

I don’t speak Hebrew and I certainly can’t pick from the list of exceedingly positive holiday greetings that become appropriate on the Jewish calendar– this one is just my favorite.  But each and every one of those holidays calls for the closure of Israeli Administration of Courts– Israel’s Central Authority for the Hague Service Convention.  Generally speaking, the Israelis are quick and efficient compared to many Central Authorities throughout the Hague community, but at holiday time, bottlenecks do occur– especially around Rosh Hashanah and Yom Kippur, late summer/early fall.

Yet not all is lost.

Federal Rule 4(m) and all but a couple of states provide a safety valve for service outside the United States (sorry, Wisconsin & Michigan—you guys will have to get creative, so call me).  Plaintiffs’ counsel is usually held to a reasonable diligence standard rather than a strict, hard-target deadline for service; a very nice shield against dismissal.  But that doesn’t necessarily keep the judge happy, and it doesn’t necessarily keep clients happy either if they think service should happen in their case just like it does in the movies.

* I’m astounded at the similarities between Hebrew and Arabic phrases (as well as Hebrew and Arabic cuisine!).  Shalom Aleichem is incredibly close in pronunciation to As-Salaam-Alaikum.  They are translated into English exactly the same way, and it warmed my heart once in college to see a rabbi greet an imam with “As-Salaam-Alaikum”… the imam replied in Hebrew “Aleichem Shalom.”

** One more lesser-known holiday:  The Feast of the Ascension.  Latter part of May, forty days after Easter.  It’s a big day in the Christian calendar, but celebrated mostly by Roman Catholics—ardently so in Belgium.  They take the whole week off.

As if the earth-shattering scandal surrounding Volkswagen’s EPA “defeat device” were old news, we have become accustomed to story after story of the company’s wrongdoing.  When the spotlight was cast on VW subsidiary Audi earlier this year, the story didn’t make many waves, seemingly because it was expected.  If the parent did it, why not the sub, too?

Next, we learned that yet another European conglomerate sought to defraud U.S. environmental regulators.  Fiat Chrysler Automobiles, N.V. (FCA) was also caught in the proverbial net, with perhaps more to follow.

Of course, the litigation floodgates opened, with suits brought by consumers and state attorneys-general across the United States.  Unfair and deceptive marketing practices, specific violations of merchandising practices statutes, conspiracy, pervasive fraud…

Last week, a newly-released study alleged that the hub of the wheel in the whole scandal was Robert Bosch GmbH*, the massive German engineering & electronics firm.  According to researchers at UC-San Diego and Ruhr University-Bochum, Bosch wrote the code that got the automakers around EPA testing and allowed them to achieve better scores on emissions tests than more scrupulous competitors.  The thought that such a highly respected company would undertake such a massive campaign of underhandedness makes American car-buyers wonder who else was involved.  And so the lawsuits come.

This poses specific, though not insurmountable, challenges to plaintiffs’ lawyers across the country.  All three automakers, as well as Bosch, are chartered and domiciled in nations that are party to the Hague Service Convention.  When they are sued in U.S. courts, service of process must be effected according to very specific guidelines mapped out in the Convention, or the effort to bring suit is a colossal waste of time.

In the case of FCA (now the parent company of Chrysler), the best way to go is pretty straightforward:  serve in England, even though it’s originally an Italian company now chartered in the Netherlands.  Fiat’s head office is in London.

As for the others—VW, Audi, Bosch—it’s Germany.  All Germany, all the time.  And folks over there are very particular about the application of the Hague Service Convention.  Simply put, folks, ain’t but one way to do it.  At least, ain’t but one way to do it right.  And that’s the key.

Specifics on How to Serve Process in Germany can be found here.  It’s a fairly regular procedure, but the machine has lots of intricate and finely tuned moving parts.  Be meticulous about it.

* GmbH in Germany = LLC in the United States.  [Whereas N.V., the entity type selected by the creators of Fiat Chrysler, is a Dutch corporation.  A great Wiki defines just about any foreign type of entity you can imagine.]

 

 

 

Thomas Hobbes, the guy who foisted the sovereignty concept on generations of political philosophy nerds. John Michael Wright - National Portrait Gallery (thus Public Domain) - via Wikimedia Commons.
Thomas Hobbes, the 17th century English guy who foisted the sovereignty concept on generations of political philosophy nerds.  Let’s all blame him for this, shall we?   John Michael Wright – National Portrait Gallery (thus Public Domain) – via Wikimedia Commons.

Your defendant is a foreign government.  Or a foreign government ministry.  Or a foreign diplomatic mission.  A company owned (at least in part) by a foreign state.  (You get the point.)  You’ve done all the analysis necessary to convince a court that jurisdiction is appropriate under the Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.)– the terrorism exception and the commercial activity exception come to mind– but in order to start the proceedings, you have to put the defendant on notice of the claim.  So, how do you get them served?

Honestly, it’s not markedly different from serving a foreign individual or private company based abroad.  But there are a few particularities involved, and they can all be found in 28 U.S.C.  §1608.

The first question:  is the defendant a government (either a state* or one of its political subdivisions), or is it an instrumentality (a seemingly private entity owned by the state)?

Governments are served under §1608(a), and instrumentalities under §1608(b).  Each section lays out a hierarchy of steps.  Simply start with #1 and march your way down the list until you hit an option that works.  If you reach the end of the list and don’t have it done, we should chat, because you’ve probably missed something and are likely facing dismissal.

§1608(a): Government Defendants

  1. If the government has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are pretty rare, but if the drafting attorneys know about the first item in my big list of Five Things, it might make things awfully easy.  No arrangement?  On to #2.
  2. If a treaty relationship exists with the foreign country, follow the treaty– usually by sending a request to a Central Authority where the Hague Service Convention applies– and be sure to include a translation if called for in the foreign country’s declarations.  Be advised, though, that Central Authorities may refuse to serve their own governments on sovereign immunity grounds, especially if they don’t share the U.S. view of the commercial activity exception.
  3. If that doesn’t work, or if no treaty is in place, fill out a Notice of Suit (available from the State Department) and send everything, including translations, directly to the foreign government.  That is, try mailing it, as long as the foreign government doesn’t object to mail service in a treaty.   A translation into the foreign country’s primary language is required by the FSIA, and it must be sent by a method requiring a signed receipt.**  Now, you may or may not get that receipt… I wouldn’t bet the farm on it.
  4. If 30 days have passed, and you don’t have a delivery receipt, send the Notice of Suit and duplicate copies of everything, including translations, to the State Department for transmittal by diplomatic note.  This is particularly hairy if the defendant lacks diplomatic relations with the U.S.

[Here ends the list.  No more options.]

§1608(b):  Agency/Instrumentality Defendants

  1. If the agency or instrumentality has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are less rare than with governments, especially if the drafting attorneys know about the first item in my big list of Five Things.  No arrangement?  On to #2.
  2. If the instrumentality has a U.S. agent or officer that can be served in the U.S., hand them the documents.  Alternatively, if a treaty relationship exists with the foreign country, follow the treaty just like above.
  3. If neither of those work, (A) try a Letter Rogatory, (B) try mailing it– with the same warnings as above, or (C) “as directed by the court consistent with the law of the place where service is to be made.”  Honestly, I don’t see how (C) is going to work if none of the above fit the bill, but more odd things have happened in my line of work.

[Here ends the list.  Options are even more limited, because the diplomatic avenue is omitted.]

There’s more to it, of course, but fortunately, the lion’s share of suits against foreign governments will begin and end with the Hague Service Convention.  On the surface, it might seem daunting, but not that much more complicated than a private defendant.

 

* “State” here refers to a sovereign.  Rather an odd concept for Americans, who conceptualize sovereignty on a split-screen basis.  Yeah, Missouri is a sovereign state, but it’s not a nation.  Yeah, the U.S. is a nation and a sovereign, but it derives its sovereignty from the consent of the governed through the respective 50 st…  ah, heck, I could ramble on all day.  Point is, in most other countries, “the state” means the national government.  And when we talk about “states-party” in treaty-speak, we mean member nations.

** In federal cases, remember the Rule 4(f)(2)(C)(ii) requirement that the mailing originate from the Clerk of Court, rather than from counsel– this requirement likewise lies in the statute, and applies to federal or state suits falling under the FSIA rubric.  Remember, too, that if mail service is precluded under the foreign country’s declarations to the Hague Service Convention, it’s invalid for this step.

Update, July 20, 2020:  an interesting new application of the FSIA hierarchy is in the works, and I’m curious to see how it is interpreted.  As of September 12 (some eight weeks from now), the Hague Service Convention will enter into force in Austria.  Its declarations are yet to be posted to the HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention.  Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods.  So my question: how does this square with the §1608(a) list, which mandates that mail service be attempted before diplomatic channels?  We shall see… but I sense that Austria’s objection to HSC Art. 10(a) renders that a nullity.

Rio de Janeiro from above Cristo Redentor. Mariordo via Wikimedia Commons.
Rio de Janeiro from above Cristo Redentor.     Mariordo via Wikimedia Commons.

[Author’s note: one of our staff members is a Brazilian attorney.  While it’s not necessary that Brazilian counsel be involved, Julie has been a great addition to our staff and has a fantastic rapport with the Central Authority down there.]

They’ve got a lot of coffee in Brazil, according a certain Mr. F. A. S. of Hoboken.  It is a land of wonder and beauty and mystery and a culture all its own, not to mention home to one of the greatest athletes* ever.  Not quite like its Spanish-speaking neighbors, Brazil is a former colony of Portugal—and the only country in South America to use Portuguese as its official language.  They also throw the most massive pre-Lenten party on the planet (Rio’s Carnival), an event that makes Mardi Gras in New Orleans seem like afternoon tea at Balmoral.  And while Brazil’s political environment remains tenuous and tense at times, its judiciary has become relatively stable and respected.  Indeed, over the past several years, Brazil’s courts have undertaken a concerted effort to become more transparent.  Serving process in Brazil, while complicated, is neither the labyrinthine undertaking nor lost cause that it may once have been.

You’ve got three ways to go:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Here’s the short version of the how-to:

Article 5 Service

  • Translate the documents. Brazil has not indicated a declaration to Article 5(3), regarding translation requirements.  But they do require it, so although the defendant may speak flawless English, omitting Portuguese versions of the documents– all of them— will prompt the Central Authority to reject your request.
  • 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.  Oh, and translate the Request Form into Portuguese, too.  I contend that the treaty only requires English and French, but I don’t run the show in Brasilia.  Just do it.
  • Send everything to the Central Authority.  In duplicate.
  • Sit tight. It may take a while—perhaps a year or more from submission to return of proof.  The judge is just going to have to accept that fact, because there is no truly viable alternative.  Further, political turmoil in Brazil may slow things down even further.

Article 10 alternative methods

The Article 5 method is straightforward and simple, but actually making it happen is anything but smooth.  The real problem with service in Brazil is that they’re so new to the treaty, nobody who does what I do has a sufficient track record to make predictions.  The old method under the Interamerican Convention on Letters Rogatory took a long time.  And given the state of affairs down there right now, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all.

Brazil’s Central Authority information can be found here.

* A hat tip to the only soccer player I ever knew existed in my youth (other than his teammates, Nigel Powers and Judge Dredd).  Great enough that just two syllables suffice,  I give you… Pelé.  (Update… a hat tip to the great athlete, who passed away in São Paulo on December 29, 2022.)

I tried this kick when I was eight. I failed. And that's when I stopped playing soccer.
I tried this kick when I was eight. I failed. And that’s when I stopped playing soccer.

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

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

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

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

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

No.  Maybe.  Not necessarily.

Don’t assume that actual notice constitutes valid notice.

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

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

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

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

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

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

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

Serving process abroad touches virtually every aspect of civil litigation.

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

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

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

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.)

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

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

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

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

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

THIS is Ned Stark.
THIS is Ned Stark.

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

Taipei City at sunset
Timo Volz, Unsplash

A bit of history is critical to knowing how to serve process in Taiwan.  Depending on who you talk to, there are two Chinas.  There’s the People’s Republic of China (PRC), the Communist-run mainland, and then there’s Taiwan, the Republic of China (ROC), which is the descendant of the Nationalist regime that ruled China prior to the Communist takeover in 1949, and moved to the island of Formosa.

The split is confusing, and given the massive amount of trade between the U.S. and both Chinas, it looms large over the manner of serving defendants located in either.  Officially, the world acknowledges only a single China, viewing Taiwan (the ROC) as a rogue territory rather than a sovereign nation.   The U.S., especially, regards Taiwan with a wink & a nod… essentially, “no, we don’t officially recognize you anymore, but we’re going to pretend we do for the sake of commerce.”  The policy of the United States is to observe a “One China” policy, but we also have pledged to defend Taiwan from invasion should the PRC decide to make One China a reality.

To the roughly 24 million ethnic Chinese on the island, the ROC is its own nation, and that makes serving Taiwan defendants a bit tricky.    (For details on serving in the PRC, click here, and for Hong Kong here.)

Because it is not viewed as a sovereign, Taiwan can’t technically sign a treaty.*  Accordingly, the Hague Service Convention doesn’t apply.  And that at once complicates matters and makes serving a bit easier.  It’s easier because litigants have several service options available in Taiwan, while in the PRC, there is only one way to make it happen.  The complication lies is choosing the right one.

Before anything else, identify what is to be served.  A summons/complaint or other notice can be served by any of the following options.  BUT (and repeat after me here)… you can’t just SERVE a subpoena abroad (likewise any discovery demands, RFPs, etc.).  You must use a Letter Rogatory to compel evidence production in Taiwan, and evidence requests by this instrument must follow the same Cardinal Rules as Hague Evidence Requests-– dramatically different from serving a summons or notice.

Now, on to options for serving other documents, particularly summons & complaint combos.  If you anticipate the need to enforce a U.S. or Canadian judgment abroad, focus only on options 1 and 2, even with the significant costs involved.  If you merely seek a victory to block infringing products from your domestic marketplace, 3 and 4 might suffice.

Option 1:  Letter Rogatory

  • First, have a Letter Rogatory issued by the court hearing the case.  The court will expect you to provide the document, but the judge signs it.
  • Next, translate the documents-– all of them, including the Letter Rogatory.  Although the defendant may speak flawless English, omitting translated documents will prompt Taiwan courts to refuse execution of the Letter.  And for crying out loud, get the right written form of Chinese, which is traditional.  Simplified Chinese is a creature of Chairman Mao’s cultural revolution, so while they may perfectly understand it in Taiwan, it is considered an insult.  A very avoidable insult.
  • On that issue, if your translation provider doesn’t know what that means, find a different translation provider.
  • Next, send everything to the State Department with the appropriate fee.
  • Sit tight. It may take a while—likely several months months from submission to return of proof, if not more.
  • Be prepared to translate the response, which could be rather pricy.

Option 2:  Local Counsel

  • Hire an attorney in Taiwan to have service effected according to forum rules.***
  • Translation may or may not be necessary.
  • Make sure the proof is written up correctly, or it could be a pretty easy quash.

Option 3:  Mail

  • If the venue court allows it, give it a shot.  Now, I contend that mail service abroad is usually a horrible idea, but in Taiwan, it can be a huge cost saver, and in some cases, the only realistic way of providing notice.  Important to note: while we’re still dealing with Covid, couriers still aren’t back to requiring signatures very widely, so it’s impossible to comply with FRCP 4(f)(2)(C)(ii).
  • Pay very close attention to the rules of the venue.  You can’t necessarily just drop the thing in your outbox and call it good.
  • Always bear in mind that if you mail service, the odds that an enforcement action will be denied go up dramatically.  If your defendant has no assets in the U.S., think twice about going down this avenue.

Option 4:  Electronic service

  • Again, if the venue court allows it, give it a shot.  FRCP 4(f)(3) opens to the door, and given the non-applicability of Hague strictures, it can be a great way to go (and one that you don’t need my help to accomplish).
  • Even more than with mail service, the odds that an enforcement action will be denied go up dramatically.  Likewise, if your defendant has no assets in the U.S., think twice about going down this avenue.

Again, the lack of Hague coverage in Taiwan is not an inhibiting factor– things can actually be easier and quicker, though not necessarily cheaper, than in the PRC.  Taiwan remains a perplexing foreign policy headache for the U.S.  It is a democratic country with free and fair elections, multiple parties, a sophisticated legal system, and republican form of government.  This tends to make service in Taiwan a much smoother ride than on the mainland.

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.

* That said, it has been accepted as a member of the World Trade Organization and its various treaties… referred to as “Chinese Taipei” in an extension of the wink & nod.

** A bit of irony here…

Chiang’s portrait.
Kuomintang Archives via Wikimedia Commons.

And Mao. (All pictures taken in the PRC are public domain, as I understand it. This one is likewise from Wiki.)

*** A very obscure distinction to be wary of: corporate defendants in federal court can’t be served personally due to an exception in Rule 4(h)(2).