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Short answer: no.

It is what it is, y’all, especially in what I call “5-0” countries. The lack of options is the biggest inhibitor to speedy service, and believe me, if there’s a better way to go, I’m going to sing it from the rooftops.

What do I mean?

Well, the Hague Service Convention essentially offers two viable options, with a sort of hybrid of the two:

  • Article 5 service, in which we request the assistance of a designated Hague Central Authority to effect service according to the foreign country’s law.
  • Article 10 service– 10(b) originating from the U.S. or 10(c) service from Canada*– in which we directly engage “competent persons” in the foreign country. Think process servers in Australia or judicial bailiffs in the Netherlands.
  • Article 5(b) service, in which we ask the Central Authority to appoint our chosen affiliates and agents to get the job done. This is done to get the best of both worlds: speed and control thanks to a private or quasi-private operative, along with the official imprimatur of the state.

The 10(b)/10(c)/5(b) options are what I mean when I say that, if there’s a better way to go, I’m going to sing it from the rooftops. Those are the methods I recommend most wholeheartedly. But with garden-variety Article 5 Requests, there’s often little to sing about. Simply put, do not pass go, do not collect $200. In places like Vietnam and China and Mexico, there’s no feasible way to speed up the process, and that process can take seemingly forever.

There’s no way around that dilemma, contrary to a whole lot of horrible, terrible, no good case law that says “nah, go ahead and do it by email, regardless of what Justice O’Connor says.”

There is hope in a couple of different ways, both to keep the court at bay and (to a lesser degree) to assuage your client’s frustration that it takes so blasted long.

  1. There’s safe harbor in every rulebook out there except two– and constitutional arguments can be made about both of those. Most notably, U.S. federal rules specifically lift the ordinary service deadline, so as long as you’re diligent about getting the process started, the court can’t ding you when the local judicial officials in Biên Hòa or Guangdong or Sonora take a year to open their mail.
  2. In many countries, like Switzerland and Korea, it takes comparatively little time for proof to come back. No, there’s no valid alternative to Central Authority service, but those authorities get the job done in a relatively speedy manner.

In short, relax. You have to let them do their job.

* Subtle difference between the two here. Simply put, if I direct service of U.S. process in an Article 10 country, I can do it pursuant to Article 10(b) because attorneys are designated as forwarding authorities for the purpose of the Convention. But for me to direct service of Canadian process, it’s 10(c) because I’m not a member of a Canadian law society. But I’m still an interested person under that section.

It began as a mistake
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TL;DR: think Miranda. Anything you say in a filing about proof of Hague Service could be used against you. So don’t say anything. Also, I’m a nerd who digs arcane Latin terms like probatur even though I never studied Latin.

A bit of background is in order here.

My firm’s primary job is to have service effected on defendants located abroad. We provide our clients (all lawyers) either of two types of proof when a job is completed:

  • When we have service effected through official channels, it’s a Certificate prescribed by Article 6 of the Hague Service Convention.
  • When we serve privately in, say, England or Australia, it’s a full-blown affidavit rather than the standard proof form used by the forum court. Those just don’t say enough about how service is effective.

On more than a couple of occasions over the past year, my clients have filed proof of overseas service in the same manner in which they file proofs of service that’s effected in their own hometown. They’ll take the Hague Certificate or affidavit I send them, and overlay that proof with their own affidavit giving a rundown of how they made things happen.

That can be problematic, especially when they embellish what the proof says, using the term “personal” service unadvisedly (I’ll develop that momentarily). It’s almost always unnecessary to elaborate, especially in federal court, where Rule 4(l)(2) — that’s Four Elle Two — just says proof of service abroad has to be either [a] prescribed by a treaty (eg: a Hague Certificate) or [b] satisfactory in the court’s view to demonstrate good service. We strive to ensure that everything the court needs to know is laid down in the affidavit provided by our overseas agents. Article 6 does that by design– literally everything the court needs is right there in the Certificate.

A takeaway I gleaned not long ago from The Secret Barrister (which I highly recommend) is this: yes, legislatures make statutes, but judges feel an instinctive need to put their own gloss on the text of those statutes.  They can’t help it. It’s an irresistible urge. I have something to say about this and I’m gonna say it!

That’s bad. At one time or another, every lawyer is on the receiving end of judicial error, and it’s infuriating when a judge reads something into text that just isn’t there (read about my white whale here).

The rest of us– lawyers who don’t wear black robes and bang little wooden hammers on our desks– are prone to the same irresistible urge. I have something to say about this and I’m gonna say it!

That’s bad too.*

What do I mean by using the term “personal” service unadvisedly? Well, depending on how “personal” is defined, you could be making an incorrect statement, prompting very silly arguments by defense counsel. To be sure, you’ll win the fight– calling substituted service personal, even innocently, doesn’t negate the legal effectiveness of that service. But it’s an avoidable fight, and one that just wastes everybody’s time.

In the majority of our projects, process isn’t actually placed into a defendant’s hands. Rather, it’s handed to a family member or housekeeper, popped into a mail slot, or taped to the defendant’s door. That doesn’t negate its effectiveness, but that service arguably isn’t personal.

So don’t add your own gloss to the document. Just say “here’s the proof of service” and let the probatur ipsa do its loquitur thing.

* Craig Ferguson, that hilarious Scotsman-turned-Yank, offers a three-question rule that he applies every time he has an urge to say something potentially damaging (this clip is a bit NSFW). (1) Does this need to be said? (2) Does this need to be said by me? (3) Does this need to be said by me, now? That rule has saved me a whole bunch of heartache (yes, I still break it regularly, but less frequently as I reach middle age).

Mail Icon in 3D. Feel free to contact me through email mariia@shalabaieva.com
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I haven’t written much about this topic except to update a couple of past posts, bringing them in line with recent developments as to electronic service and the Hague Service Convention. Frankly, the developments don’t alter my usual contention a whole lot, but they do provide some persuasive authority for e-service’s use in certain scenarios. It also puts to bed a whole bunch of farcical arguments made by plaintiffs’ attorneys– my people, for the record– who love to find ways around doctrines that shouldn’t be circumvented.

For starters, I contend that serving by mail is usually* just the cheap & easy way out. Yeah, it happens all the time, and if it brings a defendant to the table, great. But as a basis for a default judgment it is, in a word, lazy. Sloppy. Unwise. [Okay, three words.]

And I would extend that to say that service by email is the even cheaper & easier way out, lazier, sloppier, and even more unwise in all but the rarest cases.

We finally have some development– exceedingly sensible development, to be sure– on the compatibility of electronic service, particularly email, and the Hague Service Convention. I owe a huge thanks to Ted Folkman for his fantastic commentary following his attendance this past summer at the Special Commission on the Hague Service and Evidence Conventions. Ted publishes the always-insightful Letters Blogatory and his specific coverage of the event is carried over at the Transnational Litigation Blog. Ted covers the academic/”brief the court”/philosophical aspect of the question. My very presumptive post here takes all of his fine work and distills it into a nuts & bolts checklist. Seriously, your average PI litigator or IP lawyer or family law attorney or (insert litigation specialty here) just doesn’t have the time or bandwidth to devote to this stuff, so here’s the TL;DR: the Special Commission has determined that email is a postal channel.**

As such, email service is legally valid under Article 10(a) of the Hague Service Convention.

But that’s not the end of the analysis. Woe to the litigator who just sees that conclusion and proceeds straight to a 4(f)(3) motion, because it’s still a deeper strategic question than “is email okay under FRCP?” Four big issues:

(1) Article 10(a) objections

Okay, so email is a postal channel. Great. Don’t even think about it in destinations where the state has objected to Article 10(a). If you can’t use FedEx, you can’t use Outlook or Gmail or Compuserv (yes, I have clients with Compuserv addresses– they still drive AMC Gremlins to work and their grandkids are already millionaires). This means that e-service on all those Schedule A defendants in 5-0 countries like China, Vietnam, Mexico, Germany… nein. Das ist nicht gut. Conclusively.

(2) How do you prove it?

But say you’re talking about someplace where 10(a) is acceptable. You’ve got to ask yourself about the last time you answered a read-receipt? For me, it was during the Clinton Administration. Unless the defendant has an out-of-office set up or is so myopic as to actually reply to you, you’re unlikely to have anything to show the court that says “see, your honor? They got it.” Sure, it may be all you have to go on so the court needs to accept a presumption, but when other, more demonstrable methods are available, don’t go this route.

(3) Do you want the defendant to actually show up?

If the only goal is to get a default judgment so you can show Amazon that a product line should be taken down, or so that you can show Customs & Border Patrol that infringing goods should be seized upon entry, then email service is fine. Provided you didn’t serve a defendant with a known address in a 5-0 country, and provided you can prove things up, it’s sufficient. That’s a whole lot of “provided” conditions.

(4) Will you have to enforce overseas?

Okay, let’s say you do get a U.S. judgment, whether default or on-the-merits. What then? If you have to seek enforcement of that judgment in a foreign country’s court, one of the first things that court is going to look at is the manner of service (they all have due process notions too). And while we might contend that e-service is constitutionally valid, they may not, regardless of its validity under the Convention. Remember, it ain’t over until your client gets a check, so don’t just take the cheap & easy way.

Wrapping it all up.

I’ve argued for years that, when other tenable methods of service are available, service by mail is a bad idea. The Special Commission’s determination last summer extends that argument to e-service. Bottom line: it may be the right thing to do in rare cases, but most of the time, it’s not.

* In rare cases, I actually recommend mail and electronic service, usually in non-Hague countries where Letters Rogatory are the only other option. But when there are viable Hague Article 5 and 10(b) channels available, they’re just cheaping out.

** Go to Ted’s commentary to see the arguments for and against this conclusion, because there’s just no room here and his insights are thorough and accurate. Period.

A harsh reality in the service of process world: once a Hague Service Request gets to a foreign Central Authority, it’s pretty well locked up– especially once it’s been underway for several weeks or months. No amendments can be made, no documents can be added, and no revisions can be made to the defendant’s address. Most of the time, all we can do is submit another Request, which means more costs and longer delays– especially if the thing has to be translated.

Now that said, in some situations, if we have a great working relationship with that Central Authority, we can shoot over an email that says “hey, Bob,* could we add one more doc to the stack on that Request I FedEx’ed to you last week?” That’s pretty rare, but once in a while it can be done. Once in a very long while.

In 99.44% of cases, the window of opportunity is extraordinarily tight, even if we have a Bob to talk to. Once it leaves Bob’s hands, he can’t do anything with it either. The Central Authority hands the process off to a regional authority, the regional authority hands it off to a local authority, and by the time it gets to the front line judicial officer who will serve it, there’s no tracking it, even if the foreign bureaucrats involved wanted to.

The only way to get that “oh wait– one last document” served is to tee up a brand new request, with all of the additional costs that entails, and hit it down the fairway again. But most courts understand what’s involved in Hague Service, so we very infrequently see a great deal of pushback. Judges and clerks understand, by and large, that things just don’t work over there the way they work here, and it’s not our rules that control the procedure.

As such, I recommend holding off until (if) the defendant appears, then serve that thing on opposing counsel.

* Bob is a generic Central Authority guy. No, his name isn’t really Bob. We don’t have many Bobs around the world.

TL;DR… be patient. It’s a process.

Several years ago, I published a pair of posts that are even more important to keep in mind now, in a post-pandemic world:

The spring of 2019 seems like a decade ago when you “carry the Covid,” but the point I tried to make in those posts is even more critical today. Regardless of who sits in the big chair at 1600 Pennsylvania Avenue, the United States continues to withdraw its leadership in the world and, correspondingly, its global security guarantees. This means we’re consciously abandoning many of our prior claims that we can tell everybody else what to do.

So how is that relevant to what I do? Well…

One of my favorite clients referred a colleague to me recently. The colleague engaged us to serve a defendant in Notamerica,* a jurisdiction that allows private service under certain conditions. The primary of those conditions: the Republic of Notamerica determines precisely who can serve, and how those people can serve, within its borders. We can’t hire just anybody to do the job. Notamerica is particularly straightforward and relatively easy in the Hague Service world, but things have to be done just so.

Now, any time a client sends someone my way, I try just a skosh harder to be gentle with reality checks. It’s not just my reputation on the line, but the reputation of the person who thinks highly enough of me to send me business.

When I told the new colleague that it would take a couple of weeks to get the job done, he was incensed. The plaintiff was barking at him to get the litigation underway, so he barked at me to get it done faster. He just couldn’t fathom that service couldn’t be done RIGHT DAMN NOW and insisted that I make it happen.

Sorry, replied I. It just doesn’t work that way. Quoting Archbishop Gilday from The Godfather Part III, I said… we have rules– we have very old rules.

Chief among those very old rules is one that American lawyers must internalize:

We do not call the shots over there.

Wherever “over there” is.

Colleagues, you can only properly advise your client when they go after an overseas defendant if you have the right mindset first (it also becomes much easier to manage expectations). And when you’re dealing with treaty doctrines and offshore procedural rules, that means setting aside any assumption that U.S. standards or expectations apply. A tough pill to swallow for a nation that (1) beat the Nazis, (2) beat the Empire of Japan, (3) established the Bretton Woods Order and the seven-odd decades of relative peace and prosperity that flowed from it, and (4) brought down the Soviet Union without killing a whole bunch of Soviets.

The reality is that we do not call the shots in Ireland or New South Wales or Ontario. And those are places run by people who actually like us. We also don’t call the shots in Guangdong or Anatolia or Caracas, where they definitely don’t like us.

When we American lawyers are more cognizant of how things work overseas, and accepting of the fact that we aren’t in charge, litigating across borders suddenly becomes a lot less frustrating.

That still doesn’t mean it’s easy, but it’s less frustrating.

* Notamerica is a fictional place, used here to protect the innocent among the practicing bar. Don’t be silly.

US dollar banknotes
engin akyurt, Unsplash

The Dutch– an exceedingly practical and direct people– have a saying: Goedkoop is Duurkoop. Cheap is expensive. We of the anglophone persuasion have a variation on that theme: you get what you pay for.

But the Dutch version captures reality far more forcefully. Cheap is expensive is an apt way of articulating the constant tension between price and value. That tension pops up its head in everyday household shopping, high-stakes litigation, and everything in between.

Plaintiffs’ lawyers seeking to serve defendants abroad have myriad choices in how to go about getting the job done:

  • They can DIY that thing (I don’t recommend it).
  • They can call their usual process server (occasionally a good idea, frequently a bad idea).
  • They can use a document automation system to fill out the right forms in the right way (shameless plug right here). A sort of “assisted do-it-yourself” option.
  • Or they can hire one of the few lawyers who handle overseas service on a regular basis (wink, wink).

All of those options bring different costs to the party, but choosing the right way necessarily includes a price versus value analysis. I can tell you categorically that my firm will not offer you the lowest price tag. And no, we aren’t K-Mart,* so we don’t price match. I don’t say that out of hubris– I say it because price matching presumes like-for-like, mass produced, fungible goods. That’s not what we provide. [It’s not what translators provide either, but that’s the subject of a different post.]

If you’re a beer guy, you know that Heileman’s Old Style cans cost a third of what a local craft brew costs. If you’re mowing the lawn on a hot Saturday afternoon, Old Style does you just fine (I actually prefer it). But if you’re gathering around a green felt table for a game of cards with some law school buddies later that evening, you want something better (I highly recommend Kansas City’s own Boulevard Pale Ale, but that’s just me). The value proposition is key.

Flying to Seattle for a meeting with a client? Sure, you could fly a bargain airline for $99, but they’ll nickel & dime you for everything from carry-on space to emergency oxygen in case of sudden cabin depressurization. For $299 on one of the Big Three, you get an actual seat belt, a real safety briefing, and if you’re kind to the gate agent, maybe a free checked bag. Even on the same plane, you can plunk down an extra fifty bucks for a bit more legroom (I’m 6’4″ and have to do that anyway) and a bigger cookie at snack time. Again, value versus price tag, based on your needs and resources.

Litigation is no different, really. You don’t want to hire the cheapest expert witness, do you? You don’t want to skimp on printing & binding for your appellate filing (I found that one out the hard way early in my career). And you don’t staff your firm with underqualified people because you can pay them less than you would pay an experienced crew. Those are all critical elements of a litigation practice, and value trumps price tag.

Ultimately, this isn’t something to shop around for, anymore than a litigant shopping around and choosing a law firm whose hourly fee is lower than the firm down the hall.  They choose you (I hope!) because you could provide competent counsel and litigate vigorously on their behalf. 

So why leave your overseas complexities to the low bidder? Or worse, why try to do it yourself? Truly, it may end up costing you more than you think.

Above all– don’t cheap out. Spend the extra money on address investigation in China. Pay a proper translation provider to handle your linguistic work. And for Kresge’s sake, don’t try to serve by email when you know darn good and well where your defendant is located.

Goedkoop is Duurkoop.

* Anybody else miss K-Mart? Blue Light Specials were awesome back in the 1970s, and in the 1990s, K-Mart Store #4465 gave me a great place to work as a college student.

This was long before I was in college.
squirrel with nut
Dušan veverkolog, Unsplash

Our firm routinely handles service in complex cases involving multiple defendants in multiple countries, nearly always pursuant to the Hague Service Convention. In many of those cases, two or three (or even more) defendants are domiciled at the same address– especially in cases involving several subsidiaries of global conglomerates. One would think that should produce some economies of scale, and in jurisdictions where a private method of service is available pursuant to Article 10(b), that’s usually the case. If my overseas process servers or bailiffs can tag multiple defendants in a single trip, they charge me less, and I pass those savings right along to my litigator clients. And even in what I term “Five-O countries,” where service can Only be effected pursuant to Article 5, we can rein in costs a bit thanks to commonality of the paperwork involved. Having the defendants served at the same address really doesn’t factor into it.

One would also think that, if we have multiple defendants to serve at the same address, they’re going to be served at the same time by the same official, who will generate proofs simultaneously and transmit them back to me in the same envelope.

Except, no. That’s not how bureaucracies work. Sure, it occasionally happens, if every single official in the chain of custody is on the ball. Even a blind squirrel finds a nut once in a while. A broken clock is right twice a day. You get the idea.

More often than not, when my requests land on an official’s desk in Berlin or Seoul or New Delhi, they’re going to get separated and eventually sent to different judicial officers for service. And if Deurwaarder Dave is having an awesome day but Deurwaarder Doug had a nasty fight with his wife at breakfast, they’re probably going to get done at markedly different times. Early last February, I got proof on a request that I’d filed in Korea in September… it had been served in late October. Quick turnaround in my experience.

The one I sent with it? Served at the end of December. Two months after the first one. The Requests arrived in Seoul in the very same FedEx envelope, and the defendants were both housed on their parent company’s corporate campus. Yet they were served two months apart.

This is not to grouse, but to illustrate a little quirk of bureaucracies generally, and Hague Article 5 Service specifically. It’s perfectly normal, and not at all surprising.

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Erik Mclean, Unsplash

Congratulations. Your USM-94 has arrived and you’ve fulfilled your obligation relative to the Hague Service Convention.

Whether you’re a client who has retained us to file an Article 5 Request on your behalf with a foreign government, or you’ve used the Hague Envoy platform, or you’re one of those intrepid do-it-yourself* practitioners who has decided to, well, do it yourself… here’s what comes next:

Wait.

Seriously, that’s all you can do. Now that you’re on file in Beijing or Berlin or Bogota, you’ve done everything possible, and you’ve fulfilled your duty. From here, it’s all in the hands of a foreign sovereign, and it’s absolutely critical that you get out of your American lawyer head (or Canadian lawyer head) and recognize that things just work differently “over there”.

Here are some pertinent posts to offer perspective for you on what’s coming down the pike:

And even above that, know that we’re here for you.

Even when we’re taking the kids to the beach.

* Sure, I’m obviously biased, but I contend that going it alone is usually a bad idea– and even if you get it right, it’s costing you more than you think.

(Update, November, 2025: In addition to personal injury suits, the number of anti-trust suits against Novo Nordisk has increased lately as well. Same calculus involved– there’s only one valid way to serve if the company won’t waive. But there are some quirks involved.)

Latest trend in litigation nationwide: Danish pharmaceutical manufacturer Novo Nordisk and its subsidiaries, sued in the United States for dramatically adverse effects of Ozempic and Wegovy. At issue is the relative safety of two medications that were originally approved for treating different yet closely related (diabetes and cardiovascular recovery) maladies, but have been found dramatically effective in treating obesity. This post disregards merits of the suits,* and focuses solely on procedural requirements to launch them.

So, what’s necessary in serving Novo Nordisk? Not anything out of the ordinary, really. Our how-to guide on service of process in Denmark lays out all the particulars of service pursuant to the Hague Service Convention, but one issue is important to keep in mind: Denmark’s position on translation. Here it is, verbatim:

A translation is not required; in the case of an untranslated document, however, the addressee is informed that he is not, under Danish law, under an obligation to accept it.

A bit of a challenge, that. Very rare is the Dane who doesn’t speak English as well as I do– seriously. Technically, you shouldn’t have to worry if your pleadings are solely in English. But many of my clients do worry, and they pay for a pro to turn everything into Danish. Why? It’s tough to say whether the serving officer in Bagsværd will be adamant about that or whether the N.N. staff member who receives the documents will be recalcitrant. If they refuse, the plaintiff goes back to the drawing board and starts all over with the translation,.

Now, fortunately, the Danish authorities are pretty quick, only taking two or three months to return proof of service, but it’s still a gamble, and if the pleadings are relatively short, it won’t cost much to translate.

While the suits are barreling headlong into full MDL status, many must nonetheless be served now. Eventually, as the suits become more consolidated in Chicago (N.D. Ill.), and eventually defense counsel will be compelled to accept, service will be progressively less necessary.

But for now, from a service of process perspective, these cases are not extraordinary. There aren’t special rules for them, and there’s not an exemption from Hague requirements unless they waive or somebody in the United States waives or accepts for the offshore defendants.

* Full disclosure: I’ve struggled with weight my entire adult life, my entire adolescence, and much of my childhood. This culminated with literally life-saving gastric bypass surgery twenty years ago. This issue is personal. I’m still fighting it at 52, and actually pondering these medications, but also realizing that fewer beers and a couple more sessions at the YMCA every week would go a long way toward the goal. [In April, 2025, the pondering was over and I started a course of tirzepatide– marketed as “Zepbound” by Eli Lilly. Eight months on, it’s working beautifully.]

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What? Atticus Finch was also a whaling ship captain?

(Hat tip to Ted Folkman, for whom Gurung v. Molhatra is a White Whale. This issue is one of mine, for similarly frustrating reasons addressed in 2020 and extended here.)

Remember that legal analysis hierarchy they told us about as 1L’s? In order of authority:

  • Constitution
  • Statutes
  • Rules promulgated pursuant to statute
  • Precedent (binding and then persuasive, giving obiter dicta less weight than ratio decidendi*)
  • (if the text of any statute or rule is ambiguous) Legislative History

Well, that’s the basis for today’s rant.

A takeaway I gleaned not long ago from The Secret Barrister (which I highly recommend) is this: yes, yes, legislatures make statutes, but courts feel an irresistible, instinctive need to put their own gloss on the text. While it’s critical for courts to fill in legislative gaps, that can a recipe for trouble, and that trouble is alive and well in at least one area of my practice.

My legal writing professor (who saved my career from oblivion) hammered into our brains that we should always go to the source for legal analysis. Don’t just look to case law– go the the statute or rule itself. Why? Because precedents may be out of date, Shepard’s may not catch critical changes in the law, and courts sometimes get it flat-out wrong. When they do, they spawn a line of cases that make matters worse. So here we go with a rant on one such ridiculous line.

Rule 4(d)(1) waiver obligation

Fed. R. Civ. P. 4(d)(1) obliges defendants to waive service. All of them, with the notable exception of governments and their agencies and instrumentalities. This is beyond contestation.

Verbatim:

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.

When you’re suing an offshore individual or entity (other than a government defendant), the defendant is obliged to waive, period.

But back to that gloss that courts feel the need to slather onto the words of various drafters. Here’s where the fun really begins.

Sometimes dicta is a problem child. It’s definitely a problem child when it is neither analyzed, explained, or sensical. I give you the following sentence– dictum, to be sure– from O’Rourke Bros. Inc. v. Nesbitt Burns, Inc. 201 F.3d 948, 951 (7th Cir. 2000):

Rule 4(d)(2) provides foreign defendants the ability to waive service but exempts them from costs for a failure to execute the waiver.

Seems pretty straightforward, no?

Well, no, it’s not. For one thing, the ratio decidendi (okay, it’s a fancy word for holding) of O’Rourke Bros. wasn’t even about a 4(d) waiver– it was about a Rule 60 motion to overturn a dismissal. But more importantly, the sentence is manifestly incorrect. The simple fact is, 4(d)(2) doesn’t provide “the ability to waive”– 4(d)(1) mandates the waiver. Rule 4(d)(2) also doesn’t exempt anything.

The Rule 4(d)(2) fee shifting provision

Here’s 4(d)(2), verbatim and in its entirety:

Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

Anybody see the word “exempt” there? Anybody see the words “but not if…” or “unless”? Am I the only one who can’t see any reference to non-U.S. defendants whatsoever?

Hmmm. Curious. There is not a single word in that rule pertaining to naughty foreigners. As it turns out, the original 1989 draft of 4(d)(2) didn’t distinguish based on where a defendant was subject to service. It just said that if a defendant didn’t have a good reason for not waiving, the court had to shift costs to him/her/it.

Pretty simple, and pretty reasonable, too, if you ask me.

This was not the view taken by the Court of St. James, whose diplomatic legation threw a hissy fit, objecting to such an affront to the sovereignty of Her Majesty and the freedom of her subjects. The drafting committee didn’t want to have the fight, so they punted.** (Sure, I exaggerate, but still– the last time we let the Court of St. James tell us how to write our rules, a bunch of guys dumped a shipload of tea into Boston Harbor.)

Getting back to that hierarchy… courts should only look to advisory committee notes and legislative history if there’s ambiguity in the rule or statutory text. And there is no ambiguity whatsoever in Rule 4(d)(2). It is a command: thou shalt shift fees onto naughty Americans. It says nary a word about what happens (or doesn’t happen) beyond our shores.

So my question: did the drafters just want to shut the Brits up and make them go away? (I thought we did that at Yorktown in 1781, but still…) Or did they seriously intend to prohibit fee shifting– in which case, why not remove the clear obligation in 4(d)(1)? Recall that defendants subject to service under 4(f) and 4(h)– so, individuals and entities in foreign countries– are obliged. The drafters left that language intact.

Advisory Committee Notes in Conflict

Even at that, the Advisory Committee notes paint a rather interesting picture– a conflicting picture if ever there was one. Regarding the obligation:

The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense. Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States.

(Emphasis added. I disagree that there’s no useful purpose in it– my stockbroker makes very nice commissions thanks to it. But I digress.)

Continuing:

The opportunity for waiver has distinct advantages to a foreign defendant. By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English.

(Emphasis added.)

Yet regarding fee shifting:

Nor are there any adverse consequences to a foreign defendant, since the provisions for shifting the expense of service to a defendant that declines to waive service apply only if the plaintiff and defendant are both located in the United States.

Um, huh?

On one hand, there’s no useful purpose in making the plaintiff shell out healthy four- or five- (I’ve even seen six!) figures to serve a foreign defendant– and those costs may impliedly be taxed against the defendant anyway– yet there are no adverse consequences to being furtive? Are you kidding me?

Remember the old adage that a camel is a horse designed by a committee? Well, this set of Notes is what we get when one committee member doesn’t know what another committee member is saying.

Mercifully, in that 1L hierarchy, the Notes don’t constitute law, and they only have bearing where the law is ambiguous.

Fee shifting to recalcitrant offshore defendants is not prohibited by 4(d)(2). It’s discretionary, and well within the court’s inherent authority to enforce obligations.

O’Rourke Bros. should be overturned. Or at least, its dunderheaded dictum should be disregarded.

* Yes, I like Latin.

** For a more thorough rundown– and criticism– of the rule drafting story, see Brockmeyer v. May, 383 F.3d 798, 807-808 (9th Cir. 2004).