This can most fairly be categorized under “how to not have to hire Viking Advocates”, but here’s a great practice tip:

If a cooperative defendant is outside the United States, don’t have them accept service.  Instead, have them waive service.

I’ll grant you, this is a distinction that only a lawyer could love, but it will matter down the road.  Let’s get into the hair splitting:

  • Waive means “nah, don’t worry about serving me. I acknowledge that I am on notice of the suit, but I do not expect you to have to jump through a bunch of hoops to confirm it for the court.”
  • Accept means “send it on over and I won’t hassle the process server or quibble about it later on.”

With the former, there’s no occasion to transmit, because it’s unnecessary.  With the latter, transmission still has to happen. That is, service must still be properly effected, so Hague rules apply.  Everybody involved may think acceptance is okay, but in reality it could still violate the destination country’s declarations to the Hague Service Convention.  Consequently, it violates U.S. law, no matter what the forum court’s rules might say.

The magic words: “occasion to transmit”, straight out of Article 1 of the Hague Service Convention.  Without such an occasion, the Convention is inapplicable, so there are no hoops to jump through.  No occasion means no worries.  Hakuna matata.

But if the defendant is only willing to accept service in the other country, the hoops remain, and they are on fire.*  You may still have to request service via a Central Authority.  In fact, there’s no question that you have to file a USM-94 in countries that object to Article 10 methods—and even in those that don’t object, the alternatives don’t necessarily work in the manner you might expect.  The waiver eliminates all questions.

Another thought:  in federal court, defendants are required to waive service anyway [see Rule 4(d)(1)].  You have to formally ask them to waive—complete with a SASE.  And that request does not amount to service.  All defendants—at least, theoretically—are so obliged.  The fee-shifting rule in 4(d)(2) isn’t compulsory for foreign defendants, but that does not alter 4(d)(1).  That’s the stick.

The carrot?  Well, 4(d)(3) gives defendants extra time to answer.  Rather than the usual 21 days in a garden-variety summons, U.S. defendants get sixty days from the waiver request… ninety days if they are abroad.  A handy little negotiating tool.

If they do waive, you don’t have to hire me to get you through the flaming hoops.

Just promise that you’ll call me about that subpoena you want to serve in Germany.

 

* Y’know, if you Google images for “flaming hoops”, lots of tigers appear in the results.  Gotta feel sorry for those critters.  Really.  [This tiger image is borrowed from a completely unrelated, yet thoughtful article by Michael Hurley, which I found on the Google rabbit trail.  I have no idea if he had the right to post it or not.]

Hague Envoy logoU.S. Marshals Form 94, the much-feared Hague Service Request.  It’s just a form to fill out, not unlike a tax return simpler to complete than a Letter Rogatory.

This is the proper form for Article 5 of the Hague Service Convention, so if that isn’t your treaty, move along, because these aren’t the droids you’re looking for. Continue Reading How to Complete a Form USM-94 Hague Service Request (2024 update)

It certainly wasn’t a slow weekend in global politics.  New Zealand’s exceedingly popular Prime Minister announced his retirement, Austria’s voters barely shunned a return to power by the hard right, and Italians rebuffed an arguably critical spate of constitutional reforms, prompting the resignation of their own popular PM.  So, what to make of these stories here in America?  Like many things, that depends on your perspective.  Much as I opined after the Brexit vote in June, not much will change in terms of how U.S. litigants must interact with foreign parties.

NEW ZEALAND

Frankly, precious little is going to change in Auckland—Prime Minister Key says he’s leaving at the top of his game.  When a PM retires, his party usually remains in power, so the agenda doesn’t change dramatically.  Look for New Zealand to continue arguing about sheep and rugby and whether to remove the Union Jack from their national flag, all while continuing to fortify their defenses against Saruman and his Orc army.

Not exactly the best image of New Zealand culture.
Not exactly the best image of New Zealand culture.

I kid, of course.  New Zealand is high on my bucket list of places to visit, because the place is objectively stunning (so the perfect location to portray Middle Earth).  They have a host of challenges before them, just like the rest of us: wealth inequality, racial tension, affordable housing, the occasional earthquake.  But in terms of relations with the U.S., status quo continuum (or however that should be conjugated).

And I don’t foresee any changes in serving process or compelling evidence down there.  It’s a common law system that, despite its absence from the Hague Service & Evidence Conventions, is not much more complicated than those in other common law countries.

Like the U.S., New Zealand is a member of the Hague Apostille, Child Abduction, and Adoption (1993) Conventions.  Especially the Apostille Convention makes life a little bit easier for litigants (and litigators).

AUSTRIA

Score one for the good guys on Sunday.  ‘Nuff said on that issue.

sound-of-music
Gratuitous picture of everybody’s favorite Austrian.

Truly, no more is going to change due to Austria’s electoral results than to New Zealand’s change in leadership.  That is, not much from a U.S. litigation perspective.  More pertinent to forthcoming changes is Austria’s expected accession to the Hague Service Convention, which has been approved by the Council of Europe (Herr Van der Bellen, we’re waiting patiently).

amadeus 2
Okay, maybe this guy is everybody’s favorite Austrian.

Austria is already a party to the Apostille, Adoption (1993), and Child Support (2007) Conventions, but its absence from the Service Convention means that a litigant’s only option to serve an Austrian defendant is an old-fashioned Letter Rogatory.  Expensive and time-consuming, that device.  And if it’s not worded correctly, highly problematic.  [Watch this space for updates as the HSC enters into force for Austria.  We’ll be on top of it.]

ITALY

Personally, I think the Italians get a bad rap.  The trains run pretty efficiently (a lonely bright spot in the horrible legacy of Benito Mussolini), the wine is both good and cheap, and that Pavarotti fellow is still yyyuuuuge there.  I really do love traveling in Italy—and I’ve returned to Rome several times, having never tossed any lira/euros into that fountain.  This is notwithstanding the fact that I’d do pretty much anything Anita Ekberg asked me to (still, that scene is completely implausible—even at 3am, there are hordes of tourists crowded around).

On Sunday, a massive slate of constitutional changes was rejected by the Italian electorate, whose turnout numbers ought to shame every American.  So status quo continuum (please, somebody conjugate that correctly?).  The very popular (and young) Prime Minister Matteo Renzi pinned his political future to this ballot, and resigned as promised.  The amendments were criticized as, ostensibly, a huge power grab by the PM, but “fake news” arguably had a huge influence on the vote (well played, Mr. Putin… well played).  The bottom line, 63 governments in 70 years was not sufficiently frustrating to warrant the changes advocated by Renzi.

Still, for U.S. litigants, Italy is actually quite smooth to navigate, and looks to remain so.  Like us, Italy does not object to alternative methods of service in the HSC, and is party to the Apostille, Evidence, Child Abduction, Adoption (1993) and Child Support (2007) agreements.  That’s all six Hague Conventions that the U.S. has ratified (soon to be seven, if you include Securities!).  A relatively good place for U.S. litigants, if you can believe it.

And my wife loves the place, so we’re going back.

20151113_130128
Peggy and me in Venice, 2015.

Ours is a small community, this group of lawyers who pay attention to Hague Service Convention cases.*  Last Friday, a big one came down the pike: the Supreme Court has granted Certiorari in Water Splash, Inc. v. Menon, a Texas case in which a defendant was served by mail in Quebec.  Now, Canada doesn’t object to service by mail, but the Fifth Circuit and Texas appeals courts sure do.  Likewise the 8th Circuit, D.Kan., several Illinois and Colorado districts…  I think they’re all wrong, but I don’t wear a robe for a living.  [For the record, the 2d and 9th agree with me.  Really, they said so, right in the decisions:  “Aaron is absolutely correct.  In the distant future.  After he’s gone to law school.”]

We may finally get some resolution to the matter now that the Nine Eight Wise Souls have agreed to hear arguments.  Then again, they might split 4-4 (I doubt it here) and leave in place the goofy mess we’ve had for a couple of decades.

Regardless of how the decision comes down, I still argue that Hague mail service is a bad idea, but at least we won’t have to waste time on a circuit split.  I’m a little irked that I don’t get to be the guy who argues the case, but that’s how the ball bounces.  Were I able to stand before the Supremes (these Supremes; not these Supremes), this is where I’d start:

The 2d and 9th Circuits got it right (in Ackermann v. Levine, 1986, and Brockmeyer v. May, 2004, respectively).  The 8th and 5th (Bankston v. Toyota Motor Corp., 1989, and Nuovo Pignone, SpA v. STORMAN ASIA M/V, 2002, respectively) got it wrong.

Essentially, the split boils down to this, honorable Justices:  Article 10(a) of the Hague Service Convention allows parties to “SEND” documents to defendants in countries that do not object to the method.  All of the Convention’s other articles used the word “SERVE”, and that has a different connotation than “SEND” according to opinions that hold against Hague Mail.  Presuming that the drafters were careful people, said the Bankston majority, if they had meant “serve”, they would have used the word “serve”.

Drafting error equals fatality.  Sorry, Mr. Bankston… try again.

Hogwash, said the Brockmeyer court (bootstrapping Ackermann, the seminal case on the issue).  “Send” includes “serve”.  And then there’s my beef: why would Article 10(a) even be in a convention about SERVICE if the drafters didn’t intend it to be a valid method?

Not to be nit-picky, but the word “send” should be read in the same sense as the word “transmit” in 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.  (Emphasis mine.)

The use of transmit here means for service.  And send & transmit are synonymous.  I appeal arbitrarily to Merriam-Webster…

Send [transitive verb]
1.  to cause to go
2.  to cause to happen
3.  to dispatch by a means of communication

Transmit [transitive verb]
1. to send or convey from one person or place to another

Transmit, send, what have you… the drafters very clearly intended transmission as a necessary step in the act of putting a defendant on notice of a claim against him.  Send and transmit mean the same thing, and the Bankston court missed it when they said the drafters only used send in Article 10(a).  Heck, even Ackermann/Brockmeyer miss the better argument by equating send and serve.

I’ve agreed with the overall Brockmeyer reasoning all along.  Simply put, Bankston is wrongly decided because “send” includes “for service” in the meaning of the word as applied in Article 10(a).

But even if that argument doesn’t suffice, Chief Justice Roberts solidified a highly pertinent rule in King v. Burwell, the opinion upholding the Affordable Care Act:

If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242, 251 (2010). But oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U. S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Id., at 133 (internal quotation marks omitted). Our duty, after all, is “to construe statutes, not isolated provisions.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 290 (2010) (internal quotation marks omitted).

Pretty compelling stuff, and that’s the idea that destroys the Bankston holding.

In the overall scheme of the Hague Service Convention, “send” is part of the service.  (Now, it might also be argued that a treaty is not a statute, but that’s another argument entirely; rules of construction are rules of construction.)

My prediction:  6-2 in favor of validity.

Now, where did I put the number of that bookie?  I saw it here a moment ago…

 

*To be sure, I first heard the Certiorari news in this morning’s daily digest from the excellent Conflict of Laws (.net) Blog, and then a short time later from Ted Folkman’s daily brief at Letters Blogatory.  Ted is providing comprehensive, ongoing coverage of the case’s progress here.  I highly encourage opposing viewpoints in the comments.

Money-USD-and-Euro_123008-480x360_(4791385491)
Image: Emilian Robert Vicol, via Wikimedia Commons.

My parents divorced around the time I finished high school.*  The court ordered Dad to provide support to Mom for both me and my sister as long as we were full time students, even in college.  I finished my bachelor’s degree about the same time my sister finished high school, and the old man decided he was done writing checks altogether; it didn’t matter that she was about to start college herself.  He wasn’t so much a deadbeat dad as he was insistent that his obligation was fulfilled (and that he knew more about family law statutes than the judge did).  The Child Support Recovery Unit saw things differently, and he drew a federal pension, so garnishment was pretty straightforward.

Child support recovery isn’t as straightforward when the “debtor” parent leaves the United States.  It’s downright impossible if s/he goes to a country that views parental obligations in a dramatically different way than ours does.  International child support enforcement is an exceedingly tough nut to crack, for a hundred different reasons.

But at least some help is on its way.  The Hague Child Support Convention will enter into force for the United States on January 1, 2017, so a mechanism will be in place soon thereafter for the enforcement of support orders (as well as alimony orders, under certain circumstances).  We can’t ascertain as yet precisely how the United States will administer requests under the treaty, but keep an eye on this space for an update once details are published; all indications are that the Department of Health and Human Services will be the designated Central Authority, but procedural details are sketchy.

With the exception of Burkina Faso (look it up—that’s a fiercely proud country right there), the treaty is only effective between the U.S. and Europe, but that just happens to be where a significant number of non-custodial parents live.  Of course, that doesn’t help with Asia, Latin America, or the vast majority of Africa.  But it’s a start.

 

UPDATE:  The Department of Health and Human Services, Office of Child Support Enforcement (OCSE), is designated as the U.S. Central Authority for this treaty.  OCSE has in turn designated state child support enforcement agencies as parties’/litigators’ primary points of contact.  Those agencies may not yet have experience with international requests under the Convention (which is logical given that it’s so new), but guidance is available to them here.

 

*This is a hot-button issue for me.

One does not simply walk into Mordor.  Likewise, one does not simply read a treaty and call it good.  In order to ascertain the full scope of an international agreement, you’ve got to dig deeper and look to the reservations a country makes when it signs on to a treaty.

At its core, a treaty is really just a contract, albeit a very special one.  No, really… that’s all it is—a contract.  [Google Foster v. Neilson, 27 U.S. 253 (1829), if you don’t believe me.]

But because it’s a very special sort of contract, its construction is governed by very special rules.

The Vienna Convention of the Law of Treaties (VCLT) was adopted in 1969 and entered into force eleven years later.  The United States signed on in 1970 (thanks, Nixon), but has yet to ratify (thanks, boneheaded Senate).  Technically, then, we haven’t given full assent to be bound by its conditions, but it is no less binding on our behavior, as it stands as a sort of restatement of the law.  Now, I still have nightmares about restatements from 1L Contracts class (my professor was out of his tree, so you can understand), but they really do set forth a solid picture of applicable law.

On the global stage, that’s critical, because customary practice informs international law almost as much as specific treaties.  Look at it this way: customary international law is analogous to the “usages” we learned in Contracts:  course of performance, course of dealings, and usage in trade.  That is, repeatedly acting a certain way over time binds a person to a certain construction of contractual language.  Where no specific language governs behavior, we still apply certain standards based on past practice.

The fact that we participate in (lead?) the community of nations can be equated to going along with a contract without actually signing the paperwork.  You can still be bound to the terms if you’ve acted & enjoyed the benefit of the bargain—and you can’t defend a breach by saying “nope, I never signed anything.”

Vienna waits for you.
Vienna waits for you.  Try the schnitzel.

In terms of treaty interpretation, this means the Vienna Convention applies universally because nobody really disputes its content.  We accept the agreement because, frankly, going against it is monumentally stupid.  It’s so succinct and so widely acknowledged by the global community that it governs without much argument.

A critical component of the VCLT is spelled out in Articles 19 through 21.  In short, when a country signs on to a treaty, it can lodge reservations to specific parts of that treaty.  If a proposed accord lists 15 obligations and we intend to only accept twelve of them, we reserve the other three.  When we do so, those three passages are ineffective as to our participation in the agreement.  [Alternatively, a reservation can also be called a declaration, which speaks either negatively or positively about specific articles.  We declare either opposition to or applicability of a particular clause.  In short, “nope—we don’t like XYZ” or “yeah, buddy, we’ll sign on to ABC!”]*

This is pertinent to lawyers in every U.S. jurisdiction, especially in light of the Hague Service and Evidence Conventions.  These two treaties harmonize disparate doctrines of law between signatory countries, and they smooth the way for some of the most critical procedures in litigation.

The Service Convention spells out in Article 10 several alternative methods of service, provided the destination state (the country where the defendant is found) doesn’t object.  Declarations are negative in this sense; in short, “nope—we don’t like these alternative methods.”

The Evidence Convention, conversely, includes a rather controversial article (Art. 23), which requires a positive declaration of applicability.  Essentially, this is a “no fishing” clause that allows countries to reject evidence requests merely because they look like pre-trial discovery maneuvers.  In short, “yeah, buddy, we’ll sign on to flashing a big middle finger to American litigators!”  (The shortcomings of the Evidence Convention are the subject of several more rants to come.)

Accordingly, a practitioner can’t just read one of these Conventions and draw conclusions from the text in isolation.  You have to read into the declarations to form a full understanding of the applicable law.

 

*Some treaties specifically prohibit reservations, so they’re an “all or nothing” prospect.  They’re not so much contracts of adhesion as they are unseverable.

Image #2:  My favorite Billy Joel album.  Primarily because of Brender and her ex-husband, Eddie (who’d had it already by the summer of ’75) but also because… Vienna.  Slow down, you crazy child…

No, really.  The Hague Convention is a myth.  Likewise the Geneva Convention and the Vienna Convention.  There are more than one of each, and referring to one of them that way is ambiguous.  (Yes, yes, if you mention the full name earlier in a text, you’re okay to truncate.)

Of course, we lawyers love ambiguity—it’s our stock in trade.  But we ought to avoid it ourselves, especially when citing authority.  In truth, there are about three dozen Hague Conventions, although the United States is party to only a few (Service, Evidence, Adoption ’93, Apostille, etc.).  They cover a range of issues, and their administration is supported by a top flight organization called the Permanent Bureau of the Hague Conference on Private International Law (the image above is a screenshot of the Conference’s website, linked here).

Using the right Convention is awfully important.

Several months ago, a lawyer called me and said he needed to “serve a notice under the Hague Convention.”  Okay, I said, thinking he meant the Hague Service Convention (HSC).  Pretty routine in my line of work; not a lot of fanfare if you have a handle on the quirks of various countries.

After about fifteen minutes of explaining the procedure necessary under the HSC, he told me I was wrong.

Now, Stubborn Aaron wanted to get belligerent and say “well, gee, smart guy… why in the hell did you call me if you know so much about it?”  I could feel my blood pressure rising.

Diplomatic Aaron took over, fortunately (we all have mood swings—don’t judge me quite yet).  “How so?  What’s your understanding of the procedure?”

He said the State Department and Customs & Immigration required that notice be served on the government of the country where the child was born.

“Hmmmm,” said Diplomatic Aaron.  “What sort of notice?”  Turns out, it was an adoption notice, that (State & CIS said) had to be served on the foreign government, requesting certification that it did not object to the adoption.

Ah, I concluded.  Not the Service Convention, but the Hague Adoption Convention (1993).

[As an aside, the State Department contention that such certification is necessary under the Adoption Convention is bollocks.  It’s merely a way to keep out immigrant kids, and foreign countries wonder if we Americans have a collective drug problem when they get such requests.  State’s interpretation is really that goofy.]

The confusion could have been avoided if I had only asked the right question:  which Hague Convention?

Live & learn.

[This post follows my earlier rant about the same subject, and was originally published on LinkedIn, April 7, 2016.]

Yeu Ninje, courtesy of Wikimedia Commons

Write this down.  There is no such thing as “The Hague Convention”.*

It’s like a unicorn or the Tooth Fairy or Rodents of Unusual Size.

Sorry, but it just doesn’t exist, so citing “The Hague Convention” is more than just sloppy vocabulary.  That sloppiness can make the wheels fall off the procedural wagon, especially if a lawyer tries to apply the wrong treaty.

Actually, there are about three dozen Hague Conventions, although the United States is party to only a few.  Identifying the right treaty is critical to the correct application of international law in a U.S. case.

  • Have to serve a summons?  You need the Hague Service Convention.
  • Need to authenticate an Italian marriage certificate?  The Hague Apostille Convention.
  • Serving a subpoena?  Not so fast.  You can’t just serve the thing, so get the thought out of your mind.  But know that the Hague Evidence Convention will govern what you seek to accomplish.  And watch out for Article 23, as it can really make you miserable.
  • Notice of Motion to Terminate Parental Rights?  The Service Convention, again… but if the TPR is in advance of an adoption, then the Hague Adoption Convention comes into play.  But be sure to be even more specific in naming, as there are two of them.  Only the 1993 Convention is applicable here, as the U.S. is not a party to the 1965 treaty, but I once spent fifteen minutes trying to convince a client that ’65 wasn’t applicable.

Getting under the proper treaty is only the first step… they all have quirks & foibles to them, so call in some expert help.  Your client and your professional liability carrier will appreciate it.

* Likewise, there’s no such thing as “The Geneva Convention”.  With all due respect to the greatest TV comedy ever, it isn’t as simple as just referring to the city where they signed the thing.

[Originally published on LinkedIn, March 11, 2016.  Update:  I go off on the subject again here.]

Lawyers are nothing if not extremely picky about linguistic precision, and it makes us look like jerks.  I am no different.

This is a huge issue in my marriage, as my wife will attest.  Non-lawyers are driven bonkers when their lawyer spouses utter the words “define __________.”  This may be why lawyers are so insistent about comfy leather sofas in their offices.

A bit of snark coming here.  This is a manifesto about precise language, in order to preserve the record for later debates over coffee or beer.

The vocabulary I am most picky about sits squarely within my practice area.  In fact, my unique little bailiwick is described by this often misused term: international litigation.   Laypersons misuse it.  Lawyers misuse it.  I intentionally misuse it myself, out of practical necessity.

International litigation refers to disputes between nation-states.  Such cases are usually brought in the International Court of Justice or the World Trade Organization Dispute Settlement Bodies.  You know—esoteric moot court stuff.  I was on the WTO and Jessup moots in law school.  I was and continue to be an international law geek, but technically, I don’t work in the field of international litigation.

I handle transnational litigation.  This term refers to disputes involving individuals and entities.  Sometimes a foreign nation-state is thrown in, such as when a homeowner sues the foreign ambassador next door because the latest diplomatic gala is noisy.  (Very obscure reference, but I’ve seen it!)

Usually, though, it pertains to a guy in Niagara Falls suing a guy in the other Niagara Falls (there are two of them) or a plaintiff in Hamburg, Iowa suing a defendant in Hamburg, Germany.  These cases are colored by international law—treaty relationships apply—but they are not correctly described as international in nature.  They are transnational.

I just have to call them international because if I don’t, two problems arise:

  1. My website’s SEO rankings in Google are shot.  I can’t afford that.  I am at the mercy of Larry & Sergey.  (As we all are.  Each of us owes fealty to the Masters of Mountain View.)  You’ll note that this article is tagged in international litigation but not transnational because LinkedIn doesn’t have such a tag.*
  2. Nobody knows what I’m talking about, so they scratch their heads and move on to the next person they don’t know at the bar association happy hour.

So if you catch me talking about international litigation, I’m probably talking about the transnational kind.   Fellow lawyers, be content that I feel icky when I do.

(Feel free to slide two pennies across the table any time.  I’ll be that much closer to getting my fancy leather sofa.)

*This post was originally published on LinkedIn, March 1, 2016.

Marauder's Map
I solemnly swear that I am up to no violation of the Federal Rules of Civil Procedure.

The time limit governing service of process for federal civil actions is found in Rule 4(m).

The gist: get the summons served in 90 days or you’re out, counsel.

But the 90-day deadline only applies if the defendant is in the United States.  Outside the U.S., you’re under a reasonable diligence standard, and that usually means that you must start the ball rolling within 90 days.  You’re not dilatory.  You don’t sandbag.  Your feet aren’t dragging like a sailor on his third day of liberty in Singap… okay, I belabor the point.

This week’s amendments don’t do a whole lot to Rule 4, but the change does clarify a very nit-picky problem.  The old 4(m):

This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

The nit-picky problem: 4(f) deals with individuals, and 4(j)(1) with foreign states.*  The old rule seemingly omitted service on entity defendants, so the committee notes say this:

Rule 4(m) is amended to correct a possible ambiguity that appears to have generated some confusion in practice.  Service in a foreign country often is accomplished by means that require more than the time set by Rule 4(m).  This problem is recognized by the two clear exceptions for service on an individual in a foreign country under Rule 4(f) and for service on a foreign state under Rule 4(j)(1).  The potential ambiguity arises from the lack of any explicit reference to service on a corporation, partnership, or other unincorporated association.  Rule 4(h)(2) provides for service on such defendants at a place outside any judicial district of the United States “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).”  Invoking service “in the manner prescribed by Rule 4(f)” could easily be read to mean that service under Rule 4(h)(2) is also service “under” Rule 4(f).  That interpretation is in keeping with the purpose to recognize the delays that often occur in effecting service in a foreign country.  But it also is possible to read the words for what they seem to say—service is under Rule 4(h)(2), albeit in a manner borrowed from almost all, but not quite all, of Rule 4(f).

Really, any reasonable reading of 4(h)(2) ought to eliminate the confusion:

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(Emphasis mine.)  Rather a tempest in a teacup, because it’s awfully implausible to argue that “oh, no, your honor… if the drafters had meant for corporations to be included, they’d have written the rule more artfully.”  Oh, how we lawyers love to manipulate the hell out of language.

But the revision negates the question entirely.

Mischief managed.

 

*Regarding 4(j)(1), a shameless plug: pay particular attention to the Foreign Sovereign Immunities Act, the subject of an excellent article by my colleagues Victoria Valentine, Shelli Barish Feinberg, and Simone Fabiili in the Michigan State International Law Review.  I was honored to contribute a bit to the cause.  More importantly, Victoria was just elected to the bench, so congratulations are in order.  Oakland County was the real winner in that race.