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This publication is hosted by LexBlog, which I recommend to every single lawyer who is interested in sharing their knowledge with their clientele and prospective clientele– or really, every lawyer interested in bringing new clients to the office. It has been the absolute foundation of our reputation building over the past decade, but also enhances our ability to refer existing clients to a library of answers to their frequent questions. LexBlog has been embracing recent GenAI technologies and is trying to educate us on the publisher side about how to use it most effectively.

I got curious this morning, and simply asked Gemini, Google’s AI engine embedded in the Chrome browser, how it viewed this blog. What follows is the result… with Gemini’s introduction. Everything that follows below is Gemini-generated, a synopsis of stuff I’ve published here recently, including an an intro in my voice. Pretty fun stuff.

“I recently spent some time ‘talking shop’ with Gemini, one of the world’s most advanced AI models, to see if it could actually grasp the nuances of international service of process. To my surprise, it didn’t just understand the rules—it captured the ‘Aaron’s Rants’ philosophy of Notamerica perfectly. We decided to co-create a survival guide for the modern litigator. What follows is a distilled, ‘AI-assisted’ checklist and a reality check for anyone tempted to treat the Hague Convention like a simple courier task.”

The “Hague Service” Readiness Checklist

☐ 1. The “Notamerica” Reality Check

  • Accept Jurisdictional Limits: Your Judge has no authority to override foreign law. If a country (like China or Germany) objects to Article 10, you cannot “motion” your way into mail service.
  • Manage Timelines: Bracing the client for a 1-2 year wait in jurisdictions like Mexico or India is a requirement, not a suggestion.

☐ 2. The Translation “Gatekeeper” Test

  • Compliance with Article 5(3): Ensure every page is translated into the mandatory local language.
  • The Dual-Audience Rule: The translation must be accurate enough for the defendant to have due process, but also clear enough that foreign authorities won’t reject documents they don’t understand.
  • Word Count Audit: Avoid verbosity. Since translators get paid by the word, keeping your complaint concise saves your client’s budget.

☐ 3. The “Door #1” Address Verification

  • Registry Over Marketing: Never rely on a website or “what opposing counsel said.”
  • The Big Tony Rule: Check the official corporate registry. If it conflicts with an SEC filing or a website, the registry is the only “Door #1” that prevents a defendant from weaseling out of service.

☐ 4. Understanding Procedural Mechanics

  • Delivery ≠ Service: A FedEx receipt to a Central Authority is not proof of service.
  • Check Declarations: Navigate country-specific “reservations.” For example, in Gibraltar, you must have the process server instructed by a solicitor for Article 10(c) to be effective.

☐ 5. Professional Oversight

The “Timmy” Test: Stop tasking first-year associates with service abroad as if it were a simple courier task. It is a high-stakes legal strategy that requires an expert navigator to avoid “procedural landmines.”

Myth vs. Reality: The “Notamerica” Cheat Sheet

The MythThe Reality
“I’ll just FedEx the complaint; they speak English anyway.”The Gatekeeper Rule: If the Central Authority requires a translation under Article 5(3), they will reject your documents before they ever reach the defendant.
“My Judge ordered substituted service via email, so we’re good.”The Sovereignty Wall: A U.S. Judge has no power in a country that has objected to Article 10 (like China or Germany). Substituted service must still comport with the Treaty.
“Service is complete once the Central Authority signs for the package.”Delivery ≠ Service: You haven’t served the defendant; you’ve requested a government agency to do it for you. Proof only comes when they say it’s done.
“Their website says they are headquartered at this address.”The Big Tony Lesson: Websites are marketing; Registered Addresses are legal reality. Don’t get cute—serve “Door #1” to prevent a motion to quash.
“It’s just a summons; I’ll let the new associate handle it.”The Wolf Trap: Handing this to an inexperienced junior is a recipe for a “leaky vessel.” It is a specialized strategy, not an administrative errand.

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JC Gellidon, Unsplash

Alternate title: You don’t serve a Central Authority. Ever.

So stop saying it.

Over the past couple of years, we’ve seen an uptick in the number of plaintiffs’ attorneys who submit FedEx receipts, attesting to delivery of Hague Service Requests to Central Authorities, filing them as proof of service. In most instances, it’s either a lack of other filing options in an ECF system (having to choose the type of pleading with no “Other” option available), or merely a misstatement, meant only to demonstrate counsel’s fulfillment of the plaintiff’s duty of reasonable diligence in getting the job done.

In other instances, though, they assert that service is complete upon delivery to the foreign authority and that’s that. I’ve even heard anecdotally that such a claim was recently stapled to a default motion, but haven’t seen anything to support such a flawed assertion. To be sure, it’s not too far fetched if a litigator equates a Hague Central Authority with a Secretary of State or other statutory agent here in the U.S. Obviously, if a defendant entity fails to maintain a registered agent, the Secretary in Albany or Juneau or Des Moines is the statutory backup. But I’ve always had a problem with that from a due process perspective– after all, what does the Secretary do with it? Even if it were a reasonably calculated means of giving a defendant notice of a suit, it’s a false equivalency to say a Central Authority is an offshore defendant’s statutory agent.

Hague Central Authorities are not agents for service. Full stop. They are the designated government agencies (or courts) responsible for seeing that service is effected according to their own internal laws, but they are not the defendant’s agent. Lawyers and courts must recognize that simple truth.

* Although it clearly doesn’t equate to proof of service, delivery to the Central Authority could arguably constitute a basis to deem a defendant served. Hat tip to the good folks at Steptoe & Johnson for highlighting Saint-Gobain Performance Plastics, issued in the D.C. Circuit four years ago. Lots of nuance in that action– a FSIA case brought to enforce an ICSID arbitral award against Venezuela. There seems to be a circuit split over the question of whether foreign sovereigns shouldn’t be deemed served despite inaction by their Hague Central Authorities, but even where the 5th Circuit goes the opposite way, it still emphasizes that service on non-governmental actors demands a higher degree of notice, and with it, actual proof. The 2d Circuit doesn’t go as far (and I’m not sure whether I disagree with the 2d on this one), holding that, where a company has actual notice, the strict formalism of the Hague Service Convention must yield to reality. If the plaintiff has fulfilled its duty to pursue Hague channels and the defendant knows about the case, let’s stop screwing around and litigate this thing, shall we? (This discussion is fleshed out in St. Gobain’s unsuccessful petition for cert. at 16-18.)

Trucks in Brooklyn
Christian Lendl, Unsplash

At least two or three times a month, I’ll get a call or email that starts off like this:

“Hi, Aaron.  I need to serve two defendants in Mexico– an entity and an individual.  Can you help us out?”

First question out of my mouth (after saying “you betcha”):  Is it a trucking case?

“Yeah.  How’d you know?”

Simply put, it’s a textbook situation– truly the example I use when I explain to colleagues what my practice entails.  Since the advent of NAFTA in the 1990s (and its successor, USMCA* a few years ago), you’re just as likely to see trucks in south Texas from Chihuahua or Tamaulipas as you are from Maine or Oregon.  Given the sheer number of hours they spend on the highway (all hours, all day, every day), it’s only natural that big rigs are statistically more likely to be involved in collisions than the SUV sitting in my driveway.  It only stands to reason, then, that collisions involving Mexican trucks would prompt litigation involving Mexican carriers and their drivers.  So what is a plaintiff’s lawyer to do?  From a service perspective, it’s no different than any other personal injury suit— this just happens to be the specific type of case we see more than any other, especially with Canadian trucks.  The defendants are always the same: trucking company, individual driver, and sometimes their insurance carrier.

Fortunately, Canada offers options in how U.S. process can be served.  Mexico does not. In both cases, the Hague Service Convention governs, but the Convention operates differently up north than it does south of the border.  The only way to go is a Request pursuant to Article 5 of the Hague Service Convention, sent to Mexico’s Hague Central Authority. Whether you have us handle the whole thing, you use the Hague Envoy platform, or you do it all yourself.  There’s no other way to go about it because Mexico objects to Article 10 of the Convention.

That’s it. Fairly straightforward stuff– it just needs to be done the right way.

* For crying out loud, why didn’t they just call it NAFTA 2.0 ?

[Another “Big Tony” lesson here, for those of you who are familiar with him from prior posts. This has really become a more prevalent thing lately, and I have to address it.]

With pretty high frequency, we’ll determine on the eve of sending a Hague Service Request that our client (almost invariably plaintiff’s counsel) has listed an address in the summons that doesn’t jive with the address indicated in an entity defendant’s state registry. We always recommend going with the registered address because that’s what Big Tony, my BusOrg (called simply Corporations back in the day) professor in law school, told us to do.

That’s the entire point of a resident agent,* he said while describing Missouri’s statutes on corporations, LLC’s, LLP’s, etc., so don’t get cute– just serve the agent. (He was also the guy who insisted that litigators shouldn’t even bother to file if they couldn’t get the defendant’s name correct.)

Big Tony was then, and remains today, a prophet.

Eight times out of ten, counsel agrees with our recommendation and says “okay, go where the registry tells you to go.” Perhaps a tenth of the time, there’s some procedural reason to stick with the summons address, so we proceed cautiously, with the caveat that it might work or it might not.

But then there’s that last time out of ten, where our client directs us to stick with the address they have for some other reason. So we have to ask… where’d that address come from?

  • It’s the service address the defendant indicated in the contract. Well, okay, that’s plausible, we say. If service fails, you can point to that when the judge gets irritated that you have to tee up another long wait. Although… how old is the contract? Has the defendant been acquired or merged with someone else? And isn’t that the contract they allegedly breached? Lots of issues still remain. But you’re the boss.
  • It’s the address the defendant indicated in a responsive pleading in another case. Ibid. Caveat ibid.
  • That’s the address on the defendant’s website. Um, no. Just… no.
  • The company’s SEC Form F-4 says so. Or its SAFER Company Snapshot. So, you’re relying on self-reporting?
  • That’s where opposing counsel told us we should go. Whoa– tap the brakes, there, pal.

The last three set my teeth on edge. Hear me out.

That’s the address on the defendant’s website.

So what?! That could just be a customer service office. It could just be the street address of the company’s loading dock, while the hive mind is housed around the corner. Sure, if they expressly say it’s their headquarters, perhaps, but even that is tenuous. Who do you go to at the HQ? Hand everything to to Timmy the Mailroom Clerk? Force your way past security to reach the CLO? Yes, state rules may give you the option of headquarters or registry, but why bother with a maybe when a sure thing is right in front of you?

Bear in mind that websites are marketing devices, nothing more. They are not expressions of hard & fast legal reality (think puffery from Contracts when you were a 1L). How many websites out there can’t even get the entity’s legal name correct, much less the entity’s legal address? Hint: LOTS. Because the kids in the marketing shop don’t run things by legal before they post.

Best example: you don’t serve General Motors at the Renaissance Center in downtown Detroit. You don’t serve Ford at the River Rouge complex out in Dearborn. You serve them at their respective registered agents’ offices in Wilmington, Delaware. Why? Because they can’t weasel out of service there. That’s the whole point of having a registered/resident agent.*

Or how about Stellantis, the big multinational that came about when Peugeot bought out Fiat-Chrysler? If Stellantis is a defendant, you definitely don’t serve them via Chrysler (technically now Stellantis North America) in Auburn Hills– another Detroit suburb. You serve Stellantis N.V. at its registered address in Hoofddorp, Netherlands.**

That’s what the defendant listed in its U.S. government filings.

Okay, fair enough, but who completed the filings? Did they indicate the compliance officer’s address, or general counsel, or the CEO’s office? It’s not a 100% reliable indication. To be sure, if we can’t even find a registry in Notamerica,*** this is unquestionably the best source we have, but if the Notamerica corporate registry conflicts with the U.S. government filings, which one is more authoritative under Notamerica law?

That’s where opposing counsel told us we should go.

Oh, where to begin…

Look, I get it. You want to trust a colleague and play nicely in the sandbox. Strive mightily, but eat and drink as friends… I’ve been incredibly blessed to have adversaries I respect, admire, and work (and eat and drink) well with.

But if opposing counsel were so forthcoming with correct (or at least, not misleading) information, why wouldn’t s/he simply file an appearance and get on with it? More to the point, if the defendant were that forthcoming with its counsel, why wouldn’t they simply waive? You wouldn’t need Viking Advocates to sail out into Notamerica to plunder. You wouldn’t need to hand us a four- or five-figure check (occasionally, six!) to go out and get those defendants served.

Wrapping it all up.

So back to Big Tony. Not your typical law professor, Tony had been to the wars. After thirty years in corporate litigation, he had an opportunity to teach would-be lawyers the lessons he’d learned over the decades. Chief among the lessons: pay attention to who the defendant is, and make sure you tag them in the right place. For the record, neither of my Civ Pro professors ever even mentioned service of process (and I chided them for it in a CLE lecture one fall morning in a Paris conference room)… but Big Tony did.

He was emphatic about getting it right the first time. So if you’re presented with (1) an authoritative official source and (2) a plausible-but-unofficial source, your best approach is to go with Door #1.

* Important to note is that registered agents just aren’t a thing in most of the world. Outside North America and the Caribbean, entities usually just have registered addresses.

** By coincidence, Stellantis’ Hoofddorp headquarters is its registered address, so nothing to quibble about. You just can’t hit them in Michigan.

*** That doesn’t mean the entity doesn’t exist. Many countries don’t even have a registry, Mexico being our biggest problem child. It just means we have no choice but to rely on the U.S. government source.

Ever feel nostalgic looking at this?
kiryl, Unsplash

[Yes, this story is relevant to litigation. I promise.]

Between us, Peggy and I have four nephews– three by biology and another by circumstance of life. All four of them are on the verge of adulthood, and all four played a lot of Minecraft when they were on the verge of adolescence. I mean a LOT of Minecraft. No, really– we’re talking freaky amounts of time playing this game that only makes me want to go lay down so my head will stop spinning.

I didn’t realize just how deep they were into the abyss until I noticed one of them watching YouTube videos of OTHER KIDS playing Minecraft.

“Hey, whatcha watchin’?”

Minecraft.

“I thought that was something you played. Y’know, like Atari?” *

Go away, old man.

“So… you’re watching Minecraft instead of playing Minecraft?”

Yes. Go away.

“You’re watching some other dweeb play the game that you yourself play.”

Yes. Go away.

[What can I say? He was surly at 12. And a dweeb. He’s still a tad surly at 20, but I’m proud of the man that he’s become, regardless.]

“I don’t get it, D. Why would you watch some other… forget it.” As I walked away, shaking my head.

You know a video game is addictive when a kid watches somebody else play it. For hours.

Now into court comes a parade of parents, suing the makers of various video game platforms for failure to warn them of the dangers posed by the likes of Minecraft, Fortnite, Roblox… all far more sophisticated and intricate than anything we could have imagined back in 1980 when they told us that Pac Man would rot our brains by 1982.

It’s the sophistication than puts parents at a disadvantage; the games are designed like Vegas casinos. No clocks, no natural light, no sense of the passage of time, all so the player stays in it. There’s a reason we don’t let seventh-graders play slots. And yet…

So who came up with Minecraft? An outfit called Mojang Studios, now a Microsoft subsidiary and Microsoft’s co-defendant in dozens (if not hundreds) of suits nationwide. If it’s going to be sued, it’s also going to have to be served, and that’s where the Hague Service Convention meets Jason Momoa.

See, Mojang AB (Aktiebolag) is a Swedish company, parked in a lovely little three-story building facing a sinister cliff face in Stockholm (this is the cliff— and now it all makes sense). Sue Mojang in Tampa or Omaha or Denver, you still have to serve it in Stockholm. See here for a rundown on how to do that.

Or just look up at the upper right hand corner of this screen (scroll all the way down if you’re on a phone) and tap us on the shoulder.

* In case there was doubt, I am Atari 2600 Old. And I was an ace at River Raid.

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Robert Anasch, Unsplash

All of our clients are lawyers, so we don’t hear this quip often. But when we do, it sets my teeth on edge just a bit, because the guy* on the other end of the line is either being extraordinarily rude, or– more likely– he just doesn’t have a solid grasp of what we do and of what’s involved when serving abroad. I always strive mightily to presume the latter.

Lawyers understand that rates are set at a certain level for a reason. A high-degree of specialized knowledge, the particular rarity of of that specialized knowledge among the practicing bar, expert tutelage, and years of experience… all go together to justify an attorney’s hourly rate or, if we’re focused on an outcome rather than time invested, an attorney’s flat rate.

Last fall, I published a post entitled Focus on value– don’t just go for the low bidder when serving overseas defendants. This is rather a sequel to that, with an illustration.

Not long after that post went live, a colleague from Notkansascity rang me up and said, “hey, Aaron, I have a few companies I need to serve in Notamerica.** Can you help me out?”

Of course, I said. Tell me a little bit about the defendants and the case.

We discussed the causes of action and the forum, and I brought him up to speed on the applicable doctrine both here and in Notamerica. Local requirements, the Hague Service Convention, and foreign law… by the end of the discussion he had a good grasp on the rulebook involved.

Turns out it was one of those situations where the defendants are all part of the same corporate family and use twelve different names on their websites and not a single one of them is accurate. No problem, though, as the Republic of Notamerica has a pretty robust corporate registry, not unlike what our Secretaries of State provide here in the U.S. (I sensed a whole lot of “a/k/a” designations coming). Within about ten minutes of searching, I concluded that he’d listed in his complaint more defendants than actually exist; most of them were just trade names or variations on actual entity names, conjured up by some overzealous marketing major who didn’t take BusOrg with Big Tony.

Together we reduced the list to a manageable– and realistic– number, and he asked me to work up an engagement. Ten minutes after I sent it to him, I get a snarky message back. “Wow. X-thousand dollars just to deliver some extra copies? That seems kinda steep.”

He had to have been thinking in terms of his local process server. I’d just spent an hour helping him whittle down a problem that would have cost him ten hours to clean up on the back end. But what process server has the legal acumen to do that?

Except that’s precisely what we do here– we don’t just salute and do what we’re told without saying, “hang on a tick– there’s a better way to approach this situation.” We have two goals in mind for everything we do: (1) protect our fellow lawyers, and (2) make us all better at the practice of law. In short, our mission is to help other lawyers do what they do, better (cue BASF commercial from the 90s). We’re in the business of telling our colleagues where the landmines are buried. We’re in the business of saving bacon. Seriously.

But this guy had reduced what we do to delivering paper. That’s all. Not advising him on the minefield he was about to saunter into. Not preventing the embarrassment certain to befall him when the judge benchslaps him for not doing his homework. He perceived us as a courier service and nothing more– which is even a jab at his local process server.

That begs the question: if all you need is somebody to deliver a stack of paperwork, why don’t you just call FedEx or UberEats or Drizzly? [Easy answer there. Because they don’t know the rules surrounding proper procedure.]

Serving process domestically is a challenging business, and you don’t want to leave it to some schmoe who doesn’t have a clue about applicable rules or about the peculiar things process servers face when they’re out and about. To be sure, I know some awesome process servers and I know some schmoes, and if I were running a lawsuit, I know which ones I wouldn’t hire. They need to do more than simply deliver things.***

Now extrapolate that to Notamerica, where they may or may not even have process servers in the first place (seriously– they don’t exist outside common law systems, and not even everywhere in the common law community). Serving process abroad is significantly more challenging than service here at home, simply because things work differently over there.

Landmines are buried everywhere in the overseas service arena. Some fields are sparsely laden (and thus not difficult to navigate safely), while others are chock-full of incendiaries that can derail a cause of action entirely.

We don’t just deliver paperwork. We navigate through those minefields.

A LOWER-COST ALTERNATIVE…

It may very well be that a litigant simply lacks sufficient resources for his/her lawyer to hire us. I get it, believe me, I get it. So I’m always keen to suggest a lower-cost approach that will help lawyers draft and file their own Hague Service Requests. It’s called Hague Envoy, and it compares to my firm like TurboTax compares to a CPA. Nobody needs to do it alone when there’s software to lend a hand.

* It’s always a guy. Seriously. Women in the legal field are just more respectful and, usually more thoughtful. This assertion is not an absolute, but it’s a rebuttable presumption.

** Tip for non-Geography majors: Notkansascity and Notamerica are fictional places, sort of like those silly jurisdictions like “Erehwon” that they came up with in Moot Court.

*** This is not a slam on the millions of people who deliver our mail, our Amazon packages, our pizza (shout-out to my guys at Minsky’s!)… but it is an argument that process servers must know and do and document a whole lot more.

No, really. It’s gamesmanship, it’s wrong, and it’s prejudicing your client. Think Charlie Brown and Lucy and that blasted football.

If defense counsel were going to accept service on their client’s behalf, they’d have done it already, so quit screwing around and recognize that time’s a-wastin’. Quit letting them pull the ball away at the last moment and send you flat on your back.

The biggest frustration my litigator clients face is the excruciatingly long wait that follows submission of a Hague Service Request to certain foreign authorities. We’re talking two years (<– not a typo) in many places, like India or Mexico. Plaintiffs pull their hair out in exasperation because, well, it just shouldn’t take this long. Judges and clerks are naturally irritated when the docket isn’t moving the way it should. All of these irritations are understandable. And they’re unavoidable.

Yet what is avoidable? Several things come to mind– all down to opposing counsel’s shenanigans:

(1) Silly delays brought on by opposing counsel’s foot-dragging.

Oh, gee. Let me see if my client will authorize me to accept and I’ll get back to you.

And then… crickets.

I regularly hear from prospective clients weeks or months after I’ve closed a file, saying “yeah, they said they were going to appear and still haven’t, so I guess we have to start the Hague process.” Perhaps two thirds of the projects we start and then pause are re-started again after a month or two.

Quit letting them jerk you around, gang. For starters, send the defendant a Rule 4(d) waiver request– yes, to the defendants and not their lawyers, although a courtesy copy can’t hurt– because that’s what Rule 4(d) directs you to do. Make very clear that, if they don’t waive, you will move for fee shifting to recoup the several thousand dollars spent to serve them. If they don’t get back to you in a month, you pretty much know where you stand.

If defense counsel promises to waive, ask them when specifically. If they don’t do it within a week, you pretty much know where you stand. When are you going to enter your appearance?

“I don’t know yet…” really means “I’m not going to but I want to stretch this timeline out as much as possible.”

They’re just jacking with you. Seriously, it’s a delay tactic. It may be counsel playing games, it may be that his/her client is just devious… either way, delay benefits them, not you or your client.

(2) OC gives you a service address that turns out to be bogus according to the foreign country’s registry.

If they’re that dependable or trustworthy, why in the hell don’t they just waive and save everybody but my stockbroker some trouble? I’ve actually had clients direct me to request service at an address provided by opposing counsel, despite clear indication in the defendant’s corporate registry that it should be served elsewhere. And they’re surprised a year later when the Hague Request fails.

At that point, plaintiff’s counsel cannot honestly tell the court that we don’t know the defendant’s address (in which case the Hague Service Convention doesn’t apply), but he does have to honestly tell the court that we have to tee this thing up again and waste another year waiting.

(3) OC purports to have authority to accept but actually doesn’t.

Yes, this actually happened once. Plaintiff filed suit, defense counsel told plaintiff’s counsel that he would accept on various individual defendants’ behalf. Plaintiff served him. He appeared. All seemed to be going well.

And then the defendants claimed he never had their authority to accept service or represent them in the first place. Not a good day for that lawyer.

And the plaintiff still had to pursue Hague Service.

Wrapping it all up.

I still hold to the Shakespearean maxim about adversaries in law: strive mightily, then eat and drink as friends. When I know that the party across the table is represented by a colleague that I know and trust, my job is actually easier. But trust in that colleague only goes so far; I still have to represent my client to the best of my ability, and that ability requires a little skepticism at times.

Unless you have some certainty that OC is an honest broker who has the defendant’s authority to play nice in the sandbox, don’t buy it. Or at least, don’t buy it for long.

English and French flags
Aleks Marinkovic, Unsplash

Seriously. Unless you absolutely have to serve them with process (ie: the summons), leave discovery demands out.

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

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

I certainly understand why they react that way. It’s common practice in many states to include discovery demands with a summons* and complaint/petition because he who demands first… demands most effectively. Under some rulebooks, omitting discovery documents from service of process puts you in an oddly defensive position at the outset.

But here’s the problem: discovery is a four-letter word outside the United States.

In civil law systems, which are in place pretty much anywhere the Union Jack didn’t once fly over (and even some where it did), demands for evidence are made by the court– not by counsel for the parties. They’re based on the Napoleonic code, very French in nature. And they’re inquisitorial systems, in which lawyers barking questions and production demands at opposing parties can be seen as a usurpation of judicial authority. As such, asking foreign authorities to serve rog’s with the summons and complaint can derail the whole thing.

But even in common law jurisdictions (eg: naturally, England and the anglophone provinces of Canada), U.S.-style discovery is frowned upon. Sending discovery demands to those jurisdictions is just not a great idea if you can help it.

Unless there’s a truly compelling reason to include the first discovery shot with process, leave it out.

* Yes, Texas, I see you there. It’s a Citation in your world, I know.

Another statement we hear regularly from colleagues who very legitimately seek to save costs or just cover all possible bases– and others who just want to shortcut the process in a super-cheap, super-quick way without worrying about proper procedure:

We’re going to serve alternatively instead of using the Hague.

Impossible to let that one go by without some discussion. Why? Because unless service happens (1) here in the U.S. or (2) in a Hague Service Convention jurisdiction that makes Article 10 available…

THERE ARE NO ALTERNATIVES

Let me elaborate.

This isn’t one of Aaron’s off-the-cuff, smart-aleck exclamations (though there are many of those). It comes from no less an authority than a very nice lady from Arizona, the Honorable Sandra Day O’Connor. You might have heard of her. In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor made very clear that:

  • if the Convention applies, thou shalt adhere to it (at 699), and
  • the methods outlined in the Convention constitute an exclusive menu of options (at 706), so thou shalt not get cute.

The Convention lays out a primary method of serving defendants abroad: a Request pursuant to Article 5, sent to the designated Central Authority tasked with executing such requests. Article 10 offers alternative avenues to valid service, provided the state of destination does not object. Where the destination state does object, no alternatives are available within the confines of the treaty.*

Notice the condition of the first holding, though: if the Convention applies. That’s a complex issue. Here’s the roadmap to addressing it:

  1. Threshold question: do you have to serve (term of art), or just provide notice?  The Hague Service Convention doesn’t govern mere notice—just service.  So if you only need to notify a party, don’t sweat the Convention.**
  2. Do the documents absolutely, positively have to go to the foreign country to be served?  Article 1 is pretty clear: “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.) If the docs have to cross a border, you’re probably on the hook.
  3. Can you serve your offshore defendant via his/her/its agent here in the United States?  If so, you’re off the hook.***  If you can’t get it done here, keep reading.
  4. Is the destination country a Hague Service Convention signatory? If no, don’t sweat the Convention. If yes, keep reading.
  5. Do you have the defendant’s address?  If so, you’re definitely on the hook.  The Convention applies, so follow Justice O’Connor’s directive.  If not, “This Convention shall not apply where the address of the person to be served with the document is not known.”  Don’t sweat the Convention—alternatives, including electronic service, are just fine.  Just know that you can’t simply shrug and disavow any knowledge of the defendant’s whereabouts.  You still have to be diligent in trying to find the guy.
  6. Does the destination country object to Article 10 alternatives? (This gets to O’Connor’s second holding.) If not, then you’re still limited to that country’s allowable options, but those can be pretty flexible. But in what I call “5-O” countries, sorry. Your only avenue to valid service runs through that country’s Hague Central Authority.

So let’s say you’ve gone through that roadmap and determined that yes, you do have to serve in Korea or Mexico or Switzerland or Brazil or China or any other 5-O country.  You don’t have a choice in the matter.

So don’t get cute.

* Letters Rogatory are always available– and they don’t flout the Convention, which opens the door wide to service via diplomatic channels. But considering them an “alternative” is a bit off-bubble. Who would go to even more trouble than the Convention requires? (Well, turns out, there may be a place where it’s necessary.)

** Language geek note here: the English version of the treaty just addresses service. The equally applicable French version differentiates between notification and signification, but that is a civil law distinction that I argue isn’t germane to common law matters. It reflects various degrees of formality that we just don’t get into and they do.

*** This includes service via the defendant’s U.S. counsel, but pay heed: such service doesn’t happen pursuant to a 4(f)(3) order— it has to arise by agency theory.

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’m an insurance lawyer, I’ll never need to serve anybody in a foreign country.  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 the Game of Thrones guy into your slide deck!

Seriously.
This is Boromir.  I use him all the time in CLE decks and in blogs. Why reinvent the wheel? (To be sure, this is not Ned Stark.  He just looks like Ned Stark.)

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever handle a subrogation case?  (Yes.)  Ever sue a manufacturer of a defective product that caused property damage or injury?  (Yes.)  Think Toyota or Krupps or Gree Electric Appliances might be your defendant?  (Hmmmm.)  Bear with me here…

Rule 4 (Fed. R. Civ. P.) and its state analogs will govern your quest, and they start off right up front with service of process. Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it. And it doesn’t matter whether it’s a divorce or a contract dispute or a subrogation case.

Yet, rejoice, dear colleagues who represent insurors who just want to recoup their losses.  You are under no heavier a burden than the rest of us.  Just pretend you’re trying an injury action or a patent infringement or what have you. There is literally no difference in how you get service effected.

There’s a problem, though:  proper Hague service takes a while.  A very long while in many instances.  And Rule 4(m) says you have to have a defendant served in 90 days or the court has to dismiss the action.*

Except, no.  Rule 4(m) sets out a 90-day deadline for service, but that deadline is also inapplicable to service abroad.

Simply put, if you have to serve a defendant outside the United States, it probably won’t happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.

Nnnnnnneee!
Nnnnnnneee!

In France?  Non.  Germany?  Nein.  The Netherlands?  Nee. —>

Okay, maybe a short time in the Netherlands. But in Mexico or China or India?  Not a snowball’s chance in hell.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures override lesser laws. A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

In short, if the judge balks at keeping your case on the docket past Day 90, tell the judge that James Madison & Alexander Hamilton said they have to.

* State rules vary, of course. Many simply track FRCP 4(m), while others allow enlargement for good cause, and what better cause can there be than a crystal clear edict from Justice O’Connor? (Sorry, Wisconsin & Michigan… you’re my problem jurisdictions. In order to reach the same result, y’all have to resort to Equal Protection arguments!)