Hunderfossen Troll, near Lillehamer,Norway. Åsmund Ødegård via Wikimedia Commons
Hunderfossen Troll, near Lillehamer,Norway. Åsmund Ødegård via Wikimedia Commons

The U.S. Supreme Court ruled unanimously this morning in TC Heartland LLC v. Kraft Foods Group Brands LLC that patent infringement suits can no longer be brought in the Eastern District of Texas.  Okay, that’s not precisely what the Nine Eight Wise Souls held (Gorsuch didn’t weigh in), but that’s the practical result of the holding.  For years, the local rules in E.D. Tex. have made it the hotbed of patent litigation, and ostensibly a paradise for so-called patent trolls.

No more.

Now, patent infringement cases can only be brought “in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”  To be sure, that’s taken directly from the patent venue statute, 28 U. S. C. §1400(b), and that text hasn’t changed of late.  But the Court has applied a bit of order to the vocabulary– essentially holding that resides means resides.  Until today, “resides” was interpreted more broadly, and the Court wrestled the idea back to a narrower meaning.  In short, a corporation’s residence is the state of its incorporation, full stop.

That doesn’t mean a corporate defendant can’t be sued outside its home state.  Obviously, it can be sued in the state where it sites its principal place of business.  And it can be sued where it commits acts of infringement (or other wrongdoing) having put itself in the stream of commerce.  Sure, the stream of commerce idea is being curtailed as well… but if GM intentionally sells a defective Chevy in South Dakota, you can bet South Dakota courts can get jurisdiction over the defect.  And if Dell intentionally markets a computer in California that infringes on an Apple patent, you can bet California will get the case.

So what does all this have to do with Hague Conventions?  Foreign companies– foreign in the “you need a passport to go there” sense– are still going to be sued for patent infringement in U.S. courts.  It just won’t be in the Eastern District of Texas unless there’s a very good reason to bring the case there.  They will still have to be properly served, and that means the Hague Service Convention must be followed, with all its intricacies.   Today’s ruling is not going to stop patent trolling*; it will just spread it out.

A particular note for patent litigators: you’ll probably have to translate the complaint, so make sure you keep it brief.  See here for more.

* For the record, just bringing a patent infringement suit doesn’t make a plaintiff a troll.  Trolls are the guys who buy up patents for fractions of what they’re worth, just so they can turn around and sue designers and manufacturers who might be infringing.  They just want to get in and get out, harvesting nuisance value and putting a huge burden on innovators; these guys really are a problem.  But true infringement cases can no longer be centered in a court with significant expertise in the area.

Interesting footnote:  rule changes proposed in D.Kan. last fall (see James Dornbrook’s article in the KC Business Journal here) would/could have made Kansas City the new epicenter for patent litigation, either to take some of the burden off of E.D. Tex. or to steal its thunder.  Today’s ruling all but squelches that thought– and Kansas City’s high tech community breathes a sigh of relief.  The rule changes may proceed, of course, but it won’t bring hundreds of cases to our doorstep.  Yes, this is disappointing for me, because the thought of all those IP firms putting down roots in my town is exciting– not only for my own practice but for the local bar more broadly.  Still, this is a heck of town for lawyers to be.

Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.
Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.

I called it.  It wasn’t a really stretch, but I was confident that this would be at least a 7-vote decision.  In Water Splash v. Menon, the U.S. Supreme Court this morning held unanimously (8-0, sans Gorsuch) that mail service is permissible under Article 10(a) of the Hague Service Convention, overturning the Texas Court of Appeals and, along with it, the 8th and 5th Circuits in Bankston and Nuovo Pignone, SpA.  At long last, there’s sense in the jurisprudence surrounding Article 10(a)– for years, I’ve thought the 8th & 5th were flat wrong in their approach, clinging to a very tenuous thread of logic.  Essentially, they focused on the drafters’ use of the word “send”, rather than “serve” in 10(a) and said that a drafting error rendered the intent questionable.  It’s always seemed silly to me, frankly; why in the hell would the drafters have put it in a Service Convention if they didn’t mean it was okay to serve that way?  Justice Alito said as much for the Court, though far more diplomatically.

Yet, I still hold to the same assertion:  just because service abroad by mail is legally valid, that doesn’t mean you should do it.  It’s almost always a horribly bad idea, if for no other reason, because proving proper delivery is a sketchy undertaking.  Plus that, it has to be valid under both the venue’s rules and the destination state’s declaration to the Convention.

Sorry, but it’s frequently unavailable to begin with (read: China, Germany, India, Mexico), and it’s usually is not the way to go anyway.  Article 5 is usually the safest option for serving defendants in Hague countries, but it’s not necessarily the most practical.  Article 10(b)/(c), where available, is usually quicker– and sometimes cheaper.  The choice of which method is most appropriate for any situation requires guidance.  Don’t just DIY the decision.

1o5tclYou’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product in Europe through a British distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.

[The author intones, as if in a Gregorian chant…]

For you, glorious and gentle counselor, have preached the gospel of truth.  You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.

[You’re getting a bit of a big head, don’t you think?]

You implore your fellow pilgrims to create an epistle of truth for the ages!

Alrighty, then.  You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the British company at its office in Berkshire.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the mission field you go.  You plunk down $1,000 to have Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the a solicitor in London, telling you that “oh, sorry, dear boy.  Quite bad form.  You’ve blundered the whole thing.” [That’s nasty in English legal circles.  And it’s funnier if you read it in Hugh Grant’s voice.  It’s nastier if you read in Ralph Fiennes’ voice… as Voldemort.]

Where did the wheels fall off?

  • Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
  • Joe Bob didn’t know that subpoenas aren’t covered by the Hague Service Convention in a way that confers any coercive effect on them (they’re covered by the Hague Evidence Convention).
  • Even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Plus that, you can’t simply “serve” a subpoena.  It doesn’t work that way if you want it to actually carry force.  You have to send a Hague Evidence Request through the appropriate channels, and ask an English court to compel production.
  • And what’s more, the British have indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  There are certain exceptions to their Article 23 declaration; your request has to be written in just the right way.

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests (condensed from this):

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and even the Brits hate that.  So do the French, the Chinese, the Germans, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.

32cf689669c85dec780ce383cb28ecfd0bef8f41Just hope the custodian of documents isn’t this guy–>

No, really, this guy is a twit.  And apparently, he now fancies himself a rock star.  Sheesh.

[I enjoyed the original British version of The Office far more than the successful American version.  Both make you want to cringe, but David Brent was simply funnier than Michael Scott.]

The world’s largest democracy.  An ancient and intriguing land with no equal on the spectrum of diverse and exotic destinations.  Seriously– India is not a single culture.  It’s dozens of them, if not hundreds.  Serving process in India is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  But brace yourself… it’s gonna take a while.

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.

Some background is in order…

  • 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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena in India.  You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is effected in India:

Article 5 Service

  • Translate the documents? Logically, if service is effected in an English-speaking country– which India is, at least officially– documents must be in English.  So, game over, right?  [Yay!  Pack up and go home!]  Not so fast, counsel… make sure your defendant actually speaks English, because his U.S. Due Process rights follow him to India.  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.  And there are hundreds of languages spoken in India, so be very meticulous about getting it right.
  • 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 appropriate Central Authority. And know that in a country of 1.3 billion people, they’ve got one guy working in their Central Authority.  One.  So…
  • Sit tight.  It may take a while—likely a year or two from submission to return of proof. That is not a typo.   Patience is absolutely critical, on the part of the plaintiff and on the part of the court– always bearing in mind that specific deadlines generally don’t apply to service abroad precisely because of inefficient foreign bureaucracies.
  • All that said, if you have local counsel involved, the time could be trimmed considerably.*

Article 10 alternative methods

  • Forget it.  They simply aren’t available, because India objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple.  India’s declarations and Central Authority information can be found here.

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

* Not just any local counsel will do, for the record.  They must actually know how to shepherd things through the labyrinth, as it were, and it helps if they know that one guy in the Central Authority office– much of the lag time in India service comes in the form of unopened mail on one guy’s desk.  Once the wheels are turning, local counsel can monitor the request to make sure that it doesn’t spend several more months waiting to be opened on some other guy’s desk.  [I exaggerate.  It’s not just one guy– but the office is incredibly understaffed and overwhelmed.]

This years favorite Atoll that I visited in Maldives. I guess that will change as time pass since the year just started. follow me on instagram for daily posts @seefromthesky
Ishan @seefromthesky, Unsplash

We aren’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the Cayman Islands is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter– in exactly the same way as service in England and Wales.  Still an overseas territory, the United Kingdom has extended the Convention’s coverage to the Caymans.

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.

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

Now for the nuts & bolts aspect of our show, in case you need to serve a resort or one of the thousands of corporations that have set up a figurative (ie: legal) home in the Caymans:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely three or four months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(b). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it otherwise violates the UK’s position on Article 10.

The UK’s declarations and Central Authority information can be found here.

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.

Following the death of Queen Elizabeth II, much speculation has been thrown around concerning whether certain members of the Commonwealth of Nations might jettison their membership, kick out the monarchy, and go it alone as a republic.  That’s not in the cards for the Caymans– they’re not an independent state.  They’re a British Overseas Territory.

Richard Burton & Elizabeth Taylor, "Divorce His, Divorce Hers", 1973. Public domain (image pre-1977 without assertion of copyright).
Richard Burton & Elizabeth Taylor, “Divorce His, Divorce Hers”, 1973.  Public domain (image pre-1977 without assertion of copyright).

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 divorces, 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.

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 divorces exclusively, no visa applications ever.  What if your client’s soon-to-be ex-wife is Chinese?  What if she threw her hands up one day and in a fit of pique yelled at him “that’s it!  I’m going home to Beijing!” before she ran home to Mom and Pop?  Your case is only simple on its face.  Maybe they don’t have kids.  Maybe they don’t have property to fight over.  Maybe the only issue before the court is whether to dissolve the marriage.

You still have to initiate the proceedings.  And that’s not going to be as easy as just tossing the petition into a FedEx envelope and jetting it off to her parent’s house.  Serving process in China requires a very particular procedure.  If the defendant (or respondent— however the other spouse is referred to in the petition) is in the military, it can be even more complicated.

And woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (see more here).  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.

 

Prime Minister Winston Churchill announcing the surrender of German forces, May 8, 1945. Imperial War Museum photo.
Prime Minister Winston Churchill announces the surrender of German forces on the BBC, May 8, 1945. Imperial War Museum photo.

Very few of us alive today remember the elation of May 8, 1945.  My parents weren’t even born yet, and my grandparents are no longer alive to tell the story.  But that doesn’t mean the celebration is lost to time.  For just a moment, pause to reflect on what was done, and what was still left to be done on that spring morning 72 years ago.

Perhaps* the greatest-ever threat to humanity had finally been vanquished after six long years.  Millions of survivors could again pursue their hopes and creams.  We could envision happiness once again, rather than destruction and bloodshed.

Public Domain (via Wikimedia Commons)
Public Domain (via Wikimedia Commons)

And still, the job wasn’t done.  The Empire of Japan would hold on for another three months (or four, depending on how you calculate), only surrendering after two strikes of the most terrible weapon devised by humankind.

But despite that, VE Day will always be one of my favorite commemorations.  It’s not a holiday, but it is certainly cause for a smile and quiet contemplation of the optimism that finally dawned on Europe, after the darkness was defeated.

Perhaps it is no small coincidence that the French Republic yesterday beat back a latter-day iteration of the same ideology that gripped Italy in the 1920s and Germany in the 1930s.  Kudos to France for recognizing the modern xenophobic trend for what it is: fascism– pure and simple.  A vigilant watch is the only way to prevent its return to power.

My congratulations to President-Elect Macron (who shares my birthday)…

Bonne chance, monsiuer.  Gardez bien la démocratie et la liberté.

* I always feel it necessary to point out that Stalin, not Hitler, was the great butcher of Europe in the 1930s and 1940s.  This is not to cast Hitler in a positive light– not at all.  But Stalin frequently gets a pass because we were allied with the Soviets; without them on our side, Hitler would have run the table, and a swastika would still fly over Buckingham Palace.  I’m still not sure who was worse.

JLPC via Wikimedia Commons.
JLPC via Wikimedia Commons.

(As of 2022… French Huissiers are now called Commissaires de Justice…)

To most American lawyers, service pursuant to the Hague Service Convention means filling out an inscrutable Article 5 request form, putting a jumble of paperwork into decipherable order, and mailing it off into some black hole bureaucracy in a far off land.  In some cases, that’s exactly what it amounts to, and this is why I have a practice.  Really.

But much of the time, a litigant is better off using Article 10(b) channels to effect service.  They’re no less effective, they’re usually quite a bit quicker than the Article 5 channel, and often do not cost much more to use than that inscrutable form.  In France, Luxembourg, southern Belgium, and even Québec, the Huissier de Justice is the route to speedy and effective service.  The counterpart to the huissier in the Netherlands and Flanders (northern Belgium) is the gerechtsdeurwaarder, and in Italy, Ufficiali Giudiziari.  They serve a substantially similar function (I use the term huissier from here to apply to all– merely for simplicity).*

For reference:

Article 10.  Provided the State of destination does not object, the present Convention shall not interfere with (…)  b)  the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination (…) .

In short, a lawyer in the US can directly hire a huissier or gerechtsdeurwaarder to serve process in countries that do not object to Article 10.  Applying to the Central Authority under Article 5 is superfluous… you may as well just cut out the middleman, because the Central Authority is going to hand the request off to a random bailiff for execution anyway.

But beyond speed, what is the benefit?  Simply put, control.  If you hire a judicial officer directly, you determine who handles the documents, you reduce the number of hands they pass through (and thus reduce the chance for error), and you can prevent ineffective service because the person working the job doesn’t know what law you need to apply.  I’ll elaborate momentarily, after a bit of explanation of what a huissier actually is.

First and foremost, a huissier is a lawyer– a fully trained attorney who has chosen a specific career track in a specialized field.  In civil law jurisdictions, lawyers don’t just choose between transactional and trial work or between criminal and civil.  Very early in their career progression (perhaps even while in law school), they’re tracked.  Some become administrators, some transactional attorneys, trial lawyers– even judges– very soon after law school… and some choose the huissier track.  Depending on the country, huissiers may have a statutory monopoly on service of process functions, the drafting of conveyances & deeds, and the execution of judgments (think seizures, like walking into a bank and pulling all the money out of a losing defendant’s account).**

If an American lawyer can directly hire one of these folks to serve, we aren’t always subject to the luck of the draw.  It’s usually all up to us.

  • In the Netherlands, we can avoid the erroneous application of an EU requirement that ALL pleadings be translated into Dutch (they don’t necessarily have to be).
  • We can actually communicate with the person serving process to ask that they not serve a dissolution action on a respondent by handing the documents to the petitioner’s teenage son (this actually happened… “um, Mom, are you and Dad getting a divorce?”).
  • Fortunately, service by huissier is not substantially more costly than going through a Central Authority.  In many cases, it is my primary recommendation, and in some cases, my only recommendation.
They're definitely not this creepy guy.
They’re definitely not this creepy guy.

Don’t let the fancy titles fool you– these folks are just lawyers, like you and me.  And for the most part, they are incredibly gracious, cordial, and professional.

* Germany, Austria, and German-speaking Switzerland likewise use deurwaarders (in francophone Switzerland… huissiers), but those countries object to Article 10 entirely, so discussion here omits them.  I include Austria in the Article 10 objection on an anticipatory basis– the HSC hasn’t entered force there yet, but I am 99.44% certain the Austrians will join their closest neighbors in objecting to Article 10.

** Bailiffs can also play a special role in mitigating the defendant’s stress, especially in high conflict family law cases.  They’re often the defendant’s only resource for guidance.  At that, however, if the bailiff is the wrong sort of person, their lack of compassion can make matters worse, so choose carefully.  See the second bullet point above– I once had a German bailiff (who I could not select) serve divorce papers on a wife by handing them to the couple’s 14 year-old son… not exactly tactful, in my estimation.

The Straight of Dover, which is about to get a bit wider. NASA photo.
The Straight of Dover, which is about to get a bit wider. NASA photo, via Wikimedia Commons.

A frequent scenario of late (I really do get this frequently):  I’ve just met another lawyer at…

  • an alumni association event,
  • dinner at a friend’s place,
  • in the lobby of the Kauffman Center during a Kansas City Symphony performance…

Hi, I’m (insert lawyer’s name here).  

Nice to meet you, I’m Aaron.  Tell me about your practice.

Oh, I handle (insert practice area here).  How about you?

Well, I handle all the goofy procedures in litigation that cross borders.  Primarily Hague Convention issues (and there are a whole bunch of those).

Hmmm.  That’s really interesting.  How do you think Brexit is going to affect what you do?

An insightful question.  And on the surface, it might seem pretty monumental– Brexit is rippling through the global economy like an Oklahoma tremor ripples through Kansas City.*  That is to say, it’s been relatively subtle so far– but we’re bracing for the Big One.

Still, my answer to the lawyer I’ve just met is usually, “it won’t.”  So the PM has called a snap election.  Big deal.

The sort of issues I handle– service of process abroad, foreign evidence compulsion, overseas enforcement of judgments– aren’t really a part of the European Union framework.  To be sure, if my clients were in the UK or on the continent there might be some shakeup, but I honestly don’t foresee the needle moving much in my line of work over the next two years (the timeframe for the UK’s invocation of Rome Article 50).  At least, not on the procedural end of things, and pretty much everything I do is procedural.

  • Service of US process will continue to be handled the same way across Europe– including the UK.
  • You still won’t be able to serve a subpoena with any teeth.  Full stop.
  • Your judgment will still have to be recognized and enforced by a foreign court before you can march into the defendant’s foreign bank and drain his account.
  • Eddie Izzard** will still perform in Paris and in Vienna.  He’ll just have his ID checked by a French cop before he gets on the Eurostar at St. Pancras.
  • And we yanks will still have to show a passport when we land at Heathrow or DeGaulle or Fiumicino or Schipol.  (At least, I hope it stays that simple.  Regardless… not a Brexit thing for us.)

Of course, there may be some longer term effects.  The absence of a free trade agreement may prompt Fiat Chrysler Automobiles, N.V. to pull its headquarters from London (Dodge boys might have more fun in Amsterdam?).  Other primarily continental outfits may do likewise.  This means it won’t be so simple to serve them (translation, possible Article 5 exclusivity, etc.).

More broadly, the EU may look more toward the US as a source for products and services that were previously offered by Britons and British companies (financial services come to mind as the primary industry) on a lower cost basis.  Those same Britons will look more to the US as a ripe market.  Likewise, the EU may look to the US in the same way.  Essentially, both the UK and the EU will pivot to the US as a partner.  This means that, as transatlantic commercial activity grows, so too will transatlantic litigation.

It all remains to be seen.

eddieizzard* Oklahoma and Kansas City are inextricably linked, thanks to Rogers and Hammerstein.  Everything’s like a dream in Kansas City.

** Holy executive transvestites, Batman!  This guy is funny.  If you get a chance to see him live, DO IT.  (My favorite Eddie Izzard bit is his riff on Darth Vader visiting the cafeteria on the Death Star.  Caution… Darth drops an F-bomb or two.)

 

Many of us have a certain image of Australia pressed into our minds because of Hollywood.  It’s either Crocodile Dundee or The Crocodile Hunter or… hang on, is there just something about crocodile guys with Down Under accents that make Americans part willingly with cash?  There’s so much more to this curious country continent that it’s, well, too much for Hollywood to accurately portray, even though Mel Gibson (who is American) grew up there.  For others among us, it’s the formidable structures surrounding Sydney Harbour– the Opera House, the Harbour Bridge, the dentist’s office where Dory found Nemo.  (Sorry, I couldn’t resist talking about that adorable little fish and his forgetful protector.)

Despite so many differences and curiosities and cinematic stereotypes, Australia’s states are strikingly similar to the U.S. and Canada in terms of legal structure.  All are former British colonies, all have deep-rooted common law systems in place at the national and state/provincial level, and all have a fairly liberal attitude to serving process in civil lawsuits.  But that liberality doesn’t mean that certain procedures don’t have to be followed.

Service in Australia is governed by the Hague Service Convention, which means some background is in order before we get to the “how to” portion of our show.

  • 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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  In Australia, you have to file a Hague Evidence Request, governed by the Hague Evidence Convention.  Three Cardinal Rules apply—this is dramatically different from serving a summons or notice.

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 “how to” of serving Down Under:

Article 5 Service

  • Translate the documents? Logically, if service is effected in an English-speaking country, documents must be in English.  So, game over, right?  [Yay!  Pack up and go home!]  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him to Australia.  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 appropriate Central Authority, in this case the Attorney-General.  Be sure to remit the proper fee for service, even though service fees seem to violate Article 12 of the Convention.
  • Sit tight. It may take several months from submission to return of proof– response time varies greatly by state (Australia has them, too!).  Frankly, I recommend against this option in all but the rarest of cases.  I had one fairly straightforward serve take two years to produce proof, because even the Central Authority couldn’t get the local officials to do their job properly.  Private service (read on) is unquestionably the better way to go.

Article 10 alternative methods

  • Mail service, under Article 10(a), is available.  But it’s a bad idea.  And it’s only available in Australia if it’s valid in the locality where it’s served.  Good luck determining that for sure.
  • Service via private agent (process server) seems to be available to U.S. litigants under Article 10(b).  Australia’s declarations do not articulate precisely who is and who is not authorized to serve process, and the issue has not ripened in Australia’s courts (at the state or federal level) to provide a jurisprudential conclusion.  However, the Attorney-General has indicated that foreign litigants may avail themselves of private process servers just as they did prior to Australia’s accession to the Convention in 2010.

Again, awfully straightforward stuff, much like serving U.S. documents in Canada. The method is straightforward and simple.  Australia’s declarations and Central Authority information can be found here.

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.

** Commonwealth procedures may govern the manner in which Canadian process should be served in Australia.  The author is not admitted to practice in any non-U.S. jurisdiction, so although the information presented here may be accurate, Hague channels may not be the only way to properly serve in Canadian causes of action.