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State Department photo.

Another “I get this question pretty regularly” post… and the answer is usually pretty good news, in comparison to a parent’s dreaded fear.

The question usually pops up in a listserv or at some bar function, but occasionally in a call from a lawyer who’s stumbled across this blog in a Google search:  “my client’s wife is threatening to leave him and take the kids back to (insert country name here)… what can I do?” 

Well, it depends on where the child is right now.  If she’s here, as indicated in your question, do everything you can to keep her here.  Set aside the threat to take her abroad, and focus on the threat to take her– anywhere.  Know too, though, that if it does happen, the situation may not be as grave as it seems.

In many cases, the inserted country name also happens to be on the list of countries who have implemented the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction— known more commonly as the Hague Child Abduction Convention (HCAC).  While the treaty may not prevent a child being taken out of the country, it aims to provide a streamlined mechanism by which she can be returned home.  So even if the child is taken abroad against the remaining parent’s wishes, the odds are better that she can be returned.  I wrote previously  about the mechanism for return of children once they’ve been abducted– or as the treaty also addresses, taken with permission but not returned as agreed.   That earlier post came about in order to distinguish the Child Abduction Convention from the Hague Service Convention.

In short, I stressed that the way to secure the prompt return of the child is to get local law enforcement to engage HCAC channels, rather than pursuing a custody order in a U.S. court– and enduring all of the procedural delays that such a petition entails.  Instead of treading water while a Hague Service Request is processed, it’s far more effective to raise a HCAC claim.

What I didn’t point out, though, were the preventive measures  necessary to avoid the need for a HCAC claim in the first place.

My first question, when I spoke to the most recent colleague who sought assistance, was “does the kid have a passport?”

If he does, keep it in a secure place– or if the threatening parent has it, notify the police and get them to contact the State Department so the passport can be flagged.

Absent a passport, the threatening parent won’t get very far. Sure, if the child has dual citizenship, a foreign-born (abducting) parent might try to get the other country to issue one, but flags can still be raised with the country’s diplomatic legation and U.S. law enforcement.  Again, if there’s a credible threat of abduction, make a stink about it.  Make noise.  Put both countries’ authorities on notice in the most vocal way possible.

Above all else, petition the local court for a custody order immediately, with whatever form of injunctive relief is available in that jurisdiction, and serve the action before the other parent leaves the U.S., with or without the child.  The more clear the court’s intent, the easier it will be later to demonstrate an abductor’s wrong-doing to foreign authorities.

FOLLOW-UP POST, 7/8/2020:   The Hague Child Abduction Convention: who to call.  

One of the odd quirks about serving an offshore defendant is the very routine possibility that plaintiff’s counsel could be contacted by the defense before a foreign authority notifies anyone that service has even been effected.   A hypo, to illustrate…

Dieter from Düsseldorf signs a contract with Pete from Peoria to supply Pete’s company with machine parts.  Everybody knows that German manufacturers are incredibly efficient– while their machine parts are of outstanding quality– and Pete is thrilled to have a well-coordinated supply chain.  The parts come as scheduled for about six months, when all of a sudden, bupkiss.  Nothing.  Nichts.  Dieter doesn’t answer the phone, he ignores Pete’s frantic emails (DUDE, WHERE IN THE HELL ARE MY PARTS?!), and Pete has to furlough his entire workforce until an alternate supplier can be found.  The obvious result, given Dieter’s recalcitrance?  A lawsuit.

Pete’s lawyer, Larry, needs to serve the summons & complaint for damages on Dieter in Germany.  He hires me to assist, and we send a properly formatted Hague Request to the Central Authority for Nordrhein-Westfalen.  It arrives on the 8th of January, and the good folks at the Oberlandesgerichts Düsseldorf have service effected about a month later.  On February 14th, Pete’s lawyer gets a curious email from a colleague, indicating that she represents Dieter and would like an extension of the deadline to answer.

Sure, Larry says.  But… hang on a second.

My phone rings, and Larry asks if I can shoot him a copy of the proof of service on Dieter.

Nope, I reply.  Haven’t gotten it yet.

Larry is justifiably perplexed, and Dieter’s lawyer thinks she’s got an advantage.  [Gee, Larry, you don’t even know your defendant’s been served?]

Well, no.  He doesn’t.  He has no way of knowing because the Central Autority hasn’t told anybody.  And this is perfectly normal, especially if the defendant is in China or Mexico or India (my trifecta of “this’ll take a while” countries).

The timeline:

  • January 8– request arrives at the Central Authority
  • February 8– service is effected
  • February 14– opposing counsel contacts Larry
  • March 11– a completed Hague Certificate lands in my mailbox
  • An hour later– Larry has a PDF of the Certificate to file with the forum court

That sequence of events happens all the time, and it has no bearing on the effective date of service or the deadline by which a defendant must answer.

It also doesn’t subject the plaintiff to dismissal if the proof takes several weeks or months to come back from the Authority.*  Rule 4(l)(3) is a nice safe harbor in this regard: “Failure to prove service does not affect the validity of service.” What seems to be a delicate situation really isn’t.  Any time a plaintiff has to rely on the caprices and inefficiencies of a foreign bureaucracy, courts have to give them latitude (thus my affection for FRCP 4 and its recognition of Hague realities).

The takeaway from all this:  relax.  Proof is coming.

* I filed a request in India in September, 2017.  The papers were served in November– a mere two months on, which is surprisingly quick in India.  But the Certificate arrived over Labor Day weekend.  That’s in September, for the uninitiated.  A full ten months elapsed before the plaintiff could prove that the defendant had been served.

J. Lyman Stone, Esq. of Memphis. (“Bruiser” to his friends– and enemies.)

A few weeks back, a personal injury lawyer in Memphis* called to ask how he could serve a defendant in Switzerland.**   I told him that the Swiss have a fairly straightforward view of the Hague Service Convention, and that there was only one effective way of getting the job done: an Article 5 request to the right Cantonal Central Authority.  No muss, no fuss, you get a proof back in a matter of two or three months.

“But how do they do it?” he asked.

Well, says I, it varies by Canton (not exactly a federal state, but not exactly a county either).  It’s usually a local public prosecutor or some other judicial officer who carries it out.  Frankly, though, it doesn’t matter, because as long as you submit a properly completed Request, the proof the Authority sends back to you is like Kevlar.  Again, no muss, no fuss.

“But do they actually serve it personally on the defendant?”

If he’s home, yeah.  If he’s not, they might try him again later, but in quite a few cases, they slap a Post-It note on his door and tell him to come down to the police station or the post office to pick up a sheaf of documents.  If he doesn’t do it within a certain time frame, they drop the docs in the mail and deem him served anyway.  The philosophy is this: when a judicial officer tells a Swiss citizen to come and get an envelope, they comply.

At that, he told me that wouldn’t fly.  Tennessee rules require personal, in-hand service, so the Swiss would have to do better than that.

Ahem, huh?

He insisted that it’s a Tennessee case, so Tennessee rules control how it’s done, and they would just have to get it done right.  Or we would just have to find another way.

I gently pushed back, reminding him that Tennessee law doesn’t have extraterritorial reach.  Not only that, Sandra Day O’Connor and colleagues said the Convention is mandatory doctrine— you can’t go around it.  There simply isn’t another way; you can’t just hire a guy in Zurich to do it for you. (Yes, you can request personal, in-hand service under Article 5(b). That doesn’t mean they have to do it.)

But he insisted.  Look, I said, this is basic level, 1L ConLaw stuff… the Hague Service Convention is a treaty of the United States.  It overrides everything else except the Constitution.  The Supremacy Clause?  Remember?

And the next question made my jaw drop.

“You got any case law to back that up?”

To back up the proposition that a treaty overrides state law?

“Yeah.”

Um, no, I don’t have any case law to back that up.  I have THE CONSTITUTION OF THE UNITED STATES. 

To break it down into digestible chunks…

Article VI, Para. 2
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, 

(Hey, look!  The Hague Service Convention is a treaty, made under the authority of the United States!)

shall be the supreme law of the land;

(Any questions so far?)

and the judges in every state shall be bound thereby,

(Sorry, your honor.)

anything in the Constitution or laws of any State to the contrary notwithstanding.

(Uh oh.  Roy Moore must just be apoplectic about that one.)

So, no, Bruiser.  Tennessee law doesn’t control how a Tennessee action is served on a defendant in Switzerland.  The Hague Service Convention does.  So in turn, Swiss law does.

And for the record, you’re wrong about your own rules.  Tenn. R. Civ. P. 4A mirrors Fed. R. Civ. P. 4(f), and they both specifically defer to the Convention.  Even if they didn’t, the Convention still overrides whatever state mandates might enter the picture because the Supremacy Clause says so.

So you, counsel, have a golden opportunity to thwart this guy and his B.S. antics if he brings up such a silly argument:

Leo F. Drummond, Esq., also of Memphis.***  He represents very mean people.

The Supremacy Clause is a thing.  And it’s called that for a reason.  Bank on it.

* No, it wasn’t actually Memphis.  Names have been changed to protect identities.  To be sure, this probably isn’t an accurate analysis of Tennessee rules, but that’s beside the point here.  For the record, the image up top is Mickey Rourke as Bruiser Stone in The Rainmaker, which is an absolute goldmine for Ethics CLE programmers, and one hell of a movie in its own right.  Bruiser was Matt Damon’s boss until he had to skip town and avoid a whole mess of trouble.

** Nope.  Not really Switzerland either.  This is illustrative, folks.

*** Yep.  Angelina Jolie’s dad.

 

Boeing 787 Dreamliner N787BX. José A. Montes via Wikimedia Commons.

A client emailed me recently with a question that she already knew the answer to, but needed a little affirmation regardless.  The answer to this one is so stunningly simple as to warrant a “hey, am I crazy here, or what?” message, sort of like trying to remember if your wife likes creamy or crunchy peanut butter.  No, really, I should remember, but self-doubt creeps in and jumbles the whole adventure.

Her perfectly reasonable question, paraphrased:

I have an offshore corporation to serve in a federal case, but the company’s president is coming to the States, so I can just serve him here, right?  I heard something about that the first day of law school– somebody served on a plane in U.S. airspace, or some such?

I responded, “Nope.  You’re not crazy.  If the forum court’s rules allow service on an officer within the United States, you’re gold– no matter where the corporation is domiciled*– and the Hague Service Convention is rendered inapplicable.  Federal rules do allow it, and I imagine the lion’s share of state rules (if not all of them) do likewise.”

Specifically, I give you a quick rundown of FRCP 4(h)…

Rule 4. Summons

(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:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or

[Emphasis added.  As are all emphases indicated in further rule cites.  Don’t be silly.]

“But wait!” says defense counsel, who hasn’t really thought the matter through.  “This is a (German, Chinese, Australian… pick one) company.  You have to serve it in its home country, and that means you have to go by Hague rules.”

Well, no, it doesn’t.  Not by a long shot.

Rule 4(h) goes on…

(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).

And, proceeding to 4(f)(1)…

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

Okay, fine.  The Hague Service Convention applies any time you’re serving in a Hague country.  But note the 800-pound gorilla in the room:  if you’re serving the defendant here in the U.S., you’re not serving at a place “not within any judicial district of the United States” (forgive the double-negative).

Male western lowland gorilla from Tiergarten Nürnberg. Altaileopard, via Wikimedia Commons. (This gorilla is domiciled in Germany, you’ll notice.)

You’re serving IN THE UNITED STATES, so the Hague Service Convention…  DOES. NOT.  APPLY.

By its own terms (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.

If you’re tagging the company president on a Dreamliner** from LAX to O’Hare, you aren’t serving abroad… and there’s no “occasion to transmit” anything.

Sorry, defense-counsel-who-hasn’t-really-thought-the-matter-through.  Your client is on the hook.

* Remember– domicile goes to jurisdiction more than manner of service.  Although the two concepts are closely related, the Venn Diagram only overlaps a smidge.

** The Boeing 787 is my favorite airliner ever, which is saying something, given that I flew on a PanAm 747 when I was five (that was trippy).  The Dreamliner is quiet, it’s comfortable, it’s humidified!  I also have a good friend who is a mechanic at a major American airline (you could just capitalize that last word and add an S to figure out which one)… he hates the “Plastic Princess.”  A maintenance headache, apparently.  Still, a wonderful flight experience from the passenger’s perspective.  And job security for mechanics.

USS Cole, DDG 67.  [U.S. Navy photo.]
[Author’s caveat:  it’s really not that difficult unless you’re suing Iran, North Korea, or Venezuela.  And an update: note the necessity of amending answer deadlines in summonses.]

Anybody who knows me well… knows my political leanings.  They’re no secret, but they’re usually immaterial to this blog so I leave them out of commentary almost entirely.  Full disclosure– I’m a labor Democrat, as evidenced by my first job after college, staffing a labor Democrat in the United States Senate.*  It should surprise precisely no one that I disagree with the sitting president on just about everything.  So a couple of weeks ago, my inbox and text messaging app were flooded with “hey, whaddya think of this?” messages on the Administration’s position regarding a lawsuit against the Sudanese government.

In short: “Trump Administration Sides With Sudan Against USS Cole Survivors In Lawsuit”

As much as I love NPR (labor Democrat, remember?), that’s an awfully unfair and inaccurate headline– and it only feeds the fire and ire emanating from the White House Press Office against what they consider fake news.  It’s clickbait.

Now, I hate agreeing with this White House on anything, but here, I have to line up with that side.  [Note to NPR and other left-leaning outlets– particularly Vox: knock it off with the clickbait— you’re just making reasoned arguments more difficult.  Fox News pulls that crap all the time, which is why its credibility is so low outside a hardcore base.]

For starters, the Administration didn’t side with Sudan in the suit– it sided with Sudan on the procedural question of how Sudan was served, which was the correct position to take.  I’ll get to why in a minute.

The saving grace for me (so I can sleep at night while agreeing with the White House) is that the whole idea probably irked the President to no end.  Odds are, this is one of those things they decided not to tell him about before the DoJ’s amicus brief, but if they did, he probably took the knee-jerk/non-lawyer position that NPR took in its headline: the Sudanese are bad people, they played a role in killing American sailors, and they should pay.

The vast majority of Trump’s supporters and detractors (which is to say, everybody, including me) thinks similarly.

But that isn’t how a lawsuit works, and I’m sure someone explained to the President that if Americans can do that to the Sudanese government in our courts, then foreigners can do that to the U.S. government in their courts.  For the record, the Obama Administration took the same position for the same reason.  Both are right.

So how should the plaintiffs have done it?  It ain’t that complicated, really.  The Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.) lays out a succinct hierarchy of steps to properly serve a foreign government.  Specifically, §1608(a) lists four methods for serving a foreign government, in a particular order (text recycled from my earlier post on the FSIA’s service component):

§1608(a): Government Defendants

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

Now, as to the USS Cole suit against Sudan (the subject of the current controversy), we can kick the first two options to the curb straightaway.  There’s no contract (the claims sound in tort, after all), so no special arrangement exists.  And Sudan isn’t party to the Hague Service Convention, so treaty methods are out, too.

Logically, the Cole plaintiffs went to §1608(a)(3)…

(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned…

Here’s where it gets controversial.  “(T)o the head of the ministry of foreign affairs of the foreign state concerned…”

The Cole plaintiffs purported to serve Sudan by registered mail** at the Sudanese Embassy in Washington, D.C.

Oops.

The NPR article was clear to point out that the “question is one that only a lawyer could love,” but the simple fact is that lawyers fumbled this one, and that’s why the families involved are going to have to go back to square one.  Plaintiffs’ counsel didn’t dig a little deeper into the statute to make sure they were doing it right.  For the record, I don’t know who represented the plaintiffs here and, frankly, I don’t want to know, but they should have called in some outside help.

This is a pretty straightforward question, and one I suspect the Supremes will decide on a lopsided (8-1?) vote.***  It all boils down to this: The Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  And even when he is in Washington representing his government, the Vienna Convention on Consular Relations will thwart service on his person.  All the plaintiffs had to do here was to send the summons and complaint from the Clerk’s office, by courier, requiring a signed receipt, to the Foreign Minister in Sudan.  Yes, that would have probably failed, but §1608(a)(4) provides a final– and nearly always workable– method of serving by diplomatic note.

This isn’t a case of the Trump Administration screwing over a group of grieving Navy families.  This is about proper lawyering, and what can happen when a seemingly innocuous procedure isn’t given the attention it requires.  Service matters— even if Vox minimizes its importance in a snarky subtitle.****

* This is not bragging.  Regardless of party, Capitol Hill staffers are notoriously underpaid, have thankless jobs, and in many cases, see their Congressional work become roadblocks to later job possibilities in the private sector.  It ain’t a glamour detail.

** I wonder if the Clerk of Court was involved, as it must be under FRCP 4(f)(2)(C)(ii), but that’s not the issue here.

***  Thomas, J. in dissent, maybe.

**** “It centers on where to send legal papers. Seriously.”

Update, February 13, 2020:  Good news from the folks at NPR,  “Sudan Says It Is Settling Lawsuit From Families And Victims Of USS Cole Attack”

Sudan says it has signed a deal to settle claims related to the bombing of the USS Cole 20 years ago — a move that could end lawsuits filed by victims and their families and also improve Sudan’s chances of getting off the U.S. list of state sponsors of terrorism.

Sudan’s transitional government has made it a priority to get off that punitive list since it took charge last spring.

[…]

Americans who lost loved ones in the bombing have fought for years to get a measure of justice and enforce rulings against Sudan, including roughly $315 million in damages that were awarded by a U.S. judge. But the U.S. Supreme Court threw out that judgment last year, agreeing with attorneys from both Sudan and the U.S. government who said the lawsuit should have been mailed to Sudan’s foreign ministry in Khartoum rather than to its embassy in Washington.

Weeks after the U.S. high court’s ruling, al-Bashir was ousted from power by Sudan’s military, following months of protests. Since then, it’s been led by a mixed council of civilian and leaders.

In another sign of Sudan’s attempts to improve its global standing, the transitional government said Wednesday that it would agree to a longstanding request from the International Criminal Court to hand over al-Bashir and others who are accused of committing crimes against humanity and genocide in Darfur.

“Worried People,” Pedro Ribeiro Simões, via Wikimedia Commons

[See also Think of the Long Game, Part 1 — Making Sure You’re In the Right Forum.]

Plaintiffs’ attorneys are universally motivated by a single factor: making their clients whole. As a result of that, tortfeasors are held accountable– and hopefully they correct harmful behavior– and the world is made a better, safer place.  Sure, there’s a seemingly massive amount of money to be made, but most trial lawyers are firmly rooted in the middle class.  Doing well, but not spectacularly so, unless that one big unicorn of a case comes along.  Even the stars of the plaintiffs’ bar got to be stars only because the right client (the unicorn) walked into their office one day long ago.

In chasing the unicorn, we sometimes get into a case that will eventually lead nowhere, only draining firm resources.  We don’t even need to chase the mythical horse to get into an impossible case, especially if the defendant is located abroad.  

  • We see, in that chair across the desk, a fellow who’s been hurt, and our natural inclination is to go after the bad guys and make the poor fellow whole. 
  • We know a lawyer in Kansas City who can get the offshore defendants served (hint, hint).
  • We know we have a good shot at empaneling a sympathetic jury. 
  • We think we can win.

But two critical questions often get missed, only to be asked after filing and after hiring somebody like me to deal with the initial due process concerns (or worse, wading into the fray alone).  One focused on the beginning, and the other focused on the end:

  1. How do you establish jurisdiction?  (The one we hit last week.)
  2. How do you get paid? (The one we’re discussing here.)

Both are tougher than you might think.  And both are best illustrated with a hypo (pretty straightforward stuff): 

A young fellow and his new wife escape the brutal Iowa winter and go to the tropics on their honeymoon.  While he’s walking through the hotel lobby from the beach to the buffet, he doesn’t notice a puddle of water on the floor.  Apparently, neither does the staff.  As the guy steps through the puddle, his feet slide from beneath him, and he cracks his head on the floor.  Honeymoon ruined, medical bills amassed, work missed… a textbook slip & fall case. 

By all accounts, a lawsuit is in order, so he seeks counsel.

The most important issue in whether a lawyer takes the case:  where did it happen?

Well, if it’s in Florida, things are fairly simple– sue in Florida (unless the guy bought a package deal that the resort advertised in the Des Moines Register).  But what if the resort is in the Dominican Republic, or Thailand, or Sri Lanka?  What if he booked the trip directly through the resort’s website?

Jurisdiction

[Elaboration… see last week’s post here.]

In short, we’ve got to make sure the case will even be heard in the first place, so determining proper jurisdiction is critical.  And then, once it’s been heard and a judgment won, what comes next?

Enforcement (ie: Getting Paid)

The dicey one.  The one for all the marbles.  Where the rubber meets the road.  Where the buck stops.

Okay, I’ll stop with the goofy clichés. But this is really the most important analysis– how do we turn a judgment into a check that will clear?  If a losing defendant’s assets are all in foreign lands,* an American court can’t just reach out and grab the assets like it can here.  The plaintiff must ask a court in the foreign country to issue an order forcing the defendant to cough up the cash.  That’s a tough sell in a world that views U.S. litigation in such a negative light.  Not all is lost, but this is the analysis that should come at the beginning of a case– when the prospective client is sitting in the chair– not at the end.

The foreign court will take, essentially, a two-step approach.  Of course, this is a gross oversimplification, but the foreign court will look first at whether the judgment should be recognized.  That is, it will ask whether service was properly effected (the easiest part to screw up– and the easiest part to undertake properly with help), whether jurisdiction was proper, whether evidence was appropriately gathered.  Procedural stuff with some substance thrown in.

Then, once the judgment is recognized, the foreign court will analyze whether enforcement would violate its own public policy and– if not– whether a mechanism in its own law allows it to compel payment… in all, whether it has the power to enforce.

It all boils down to comity, because there is no treaty in force that compels any court anywhere in the solar system to enforce a U.S. judgment.  And what a waste it would be to go all the way down that road to be told “no”.

So, back to our Sri Lanka beachgoer… what of him?  Imagine going to all the trouble to hale that resort into an Iowa court, just to have a judge in Sri Lanka giggle at you while he signs the denial.  Not a good result.

It might have been better to just sue in Sri Lanka.

* Best case scenario: joint & several liability, with one or more U.S. defendants or foreigners holding U.S. assets.

Spoiler alert: a few goofy football analogies lie ahead.

[See also Think of the Long Game, Part 2 — The case isn’t over until the plaintiff gets a check.]

Plaintiffs’ attorneys are universally motivated by a single factor: making their clients whole. As a result of that, tortfeasors are held accountable– and hopefully they correct harmful behavior– so the world is made a better, safer place.  Sure, there’s a seemingly massive amount of money to be made, but most trial lawyers are firmly rooted in the middle class.  Doing well, but not spectacularly so, unless that one big unicorn of a case comes along.  Even the stars of the plaintiffs’ bar got to be stars only because the right client (the unicorn) walked into their office one day long ago.

In chasing the unicorn, we sometimes get into a case that will eventually lead nowhere, only draining firm resources.  We don’t even need to chase the mythical horse to get into an impossible case, especially if the defendant is located abroad.  

  • We see, in that chair across the desk, a fellow who’s been hurt, and our natural inclination is to go after the bad guys and make the poor fellow whole. 
  • We know a lawyer in Kansas City who can get the offshore defendants served (hint, hint).
  • We know we have a good shot at empaneling a sympathetic jury. 
  • We think we can win.

But two critical questions often get missed, only to be asked after filing and after hiring somebody like me to deal with the initial due process concerns (or worse, wading into the fray alone).  One focused on the beginning, and the other focused on the end:

  1. How do you establish jurisdiction?  (The one we’re discussing here.)
  2. How do you get paid? (The one we’ll discuss later.)

Both are tougher than you might think.  And both are best illustrated with a hypo (pretty straightforward stuff): 

A young fellow and his new wife escape the brutal Iowa winter and go to the tropics on their honeymoon.  While he’s walking through the hotel lobby from the beach to the buffet, he doesn’t notice a puddle of water on the floor.  Apparently, neither does the staff.  As the guy steps through the puddle, his feet slide from beneath him, and he cracks his head on the floor.  Honeymoon ruined, medical bills amassed, work missed… a textbook slip & fall case. 

By all accounts, a lawsuit is in order, so he seeks counsel.

The most important issue in whether a lawyer takes the case:  where did it happen?

Well, if it’s in Florida or Hawaii, things are fairly simple– sue in Florida or Hawaii, unless the guy bought a package deal that the resort advertised in the Des Moines Register.  But what if the resort is in the Dominican Republic or Sri Lanka or Mauritius?  How about France or Greece?  What if, instead of using a professional travel agent, he booked the trip himself, directly through the resort’s website?

Establishing jurisdiction is going to be tough.  Enforcing a judgment is going to be even tougher.

Jurisdiction

The Nine Wise Souls haven’t had a completely cohesive view of personal jurisdiction in ages.  When I studied the issue in Civ Pro a few years ago,* the most current case was Asahi, and even there jurisdictional analysis was a maze of contradictions in a somewhat-plurality opinion.  Since that time, more opinions have come down from One First Street, but they don’t lay out a test to replace Asahi or the International Shoe/Worldwide Volkswagen line of holdings (essentially, purposeful availment, stream of consciousness commerce, etc.).  Consequently, state courts and lower federal courts are still all over the map in dealing with the issue.

Yeah, I’m like Sinbad.

Now, to be sure, I’m not up to speed on those SCOTUS decisions.  I just don’t have the emotional or intellectual stamina to navigate the labyrinth, and fortunately, I usually don’t need the answers; I’m a support lawyer, rather like the special teams coach or the really funny sidekick from Necessary Roughness (Sinbad).

But I can tell you that an Iowa court is probably not going to assert jurisdiction over a hotel in Sri Lanka when that hotel hasn’t actually marketed itself in Iowa.

If someone from Iowa is injured in Iowa, they naturally would sue in Iowa.  Not much controversy there.

If someone from Iowa is injured in Alabama, then Alabama may be the right place for the case to land unless the defendant has a connection in the Hawkeye State.  Even if Iowa could assert jurisdiction, forum non conveniens is still a thing, so the tide might roll right back to where the stars fell.  Conflict of laws analysis will tilt the decision one way or the other.  

But before a lawyer should take any case, s/he must first determine if the case can actually stay in the court where the plaintiff wants it filed.  Yes, this is all 2L-level stuff.*  But many of us are so focused on the adrenaline of the Super Bowl that we miss sight of the twenty-some weeks leading up to it.  We miss sight of that first kickoff in August.

Simply put, we’ve got to make sure the case will even be heard in the first place, so determining proper jurisdiction is critical.  And then, once it’s been heard and a judgment won, what comes next?

Enforcement (ie: Getting Paid)

Stay tuned for Part 2.

* Weird lawyering experience #473:  I basically live in FRCP 4 (Summons).  My practice is all about Civ Pro.  I gave a CLE presentation in Paris in 2016; a room full of American lawyers gave me their attention as I described the ins & outs of the Hague Service Convention and its application in France.  On my left sat a fellow who recently retired as an associate dean at UMKC Law.  On my right sat another associate dean from UMKC Law.  When the words “Federal Rules of Civil Procedure” came out of my mouth, it dawned on me that these were the guys who taught me the rules– CivPro 1 and CivPro 2 respectively.  No pressure, Aaron.  No pressure at all.

SNL’s Kate McKinnon, as Ginsburg, J. Oh, the irony of Vitamin C!

Another hat tip to Ted Folkman for pointing out a great “Case of the Day” last summer.  Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (S. Ct. 2018) was handed down in June, and at once clarifies and muddies an important part of Hague Service doctrine.  For the authoritative statement, I give you my favorite Justice,* writing for the Unanimous Nine:

A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements.

Italics mine.  This holding is pertinent to service of process abroad, but I’m unsure just what effect it will have (read Ted’s post for a nice rundown of the facts and procedural posture).  In short, the Chinese government gave a conclusory statement that its law required price collusion among manufacturers of Vitamin C.  But China’s amicus brief failed to cite any particular code language or prior public policy statement, and was actually refuted by earlier public assertions by Beijing.

The gist of the opinion: yeah, trial courts should give a fair amount of deference to a foreign government’s statement of its own law, but that deference isn’t absolute.  A pretty reasonable rule, giving trial courts much needed latitude to reject specious statements by less-than-friendly governments or low-level officials who really don’t know what they’re talking about.

So what effect does that have on the almost bulletproof quality of Hague Certificates?  Well, maybe nothing.

And, yet, maybe quite a bit.

In Northrup King v. Compania Productora Semillas (1995), the 8th Circuit declined to “look behind” a Hague Certificate, accepting as facially conclusive a foreign Central Authority’s statement that service had been effected in accordance with that country’s own law.  This widely accepted deference gives considerable– perhaps unassailable– weight to the Certificate’s conclusions.  In short, if the foreign Authority says process has been served, for the purpose of U.S. law, it’s served.  And if a defendant wants to refute that conclusion, they must attack the Certificate in the foreign country’s court.  The Northrup King holding has long been the basis for my constant assertion that the Certificate is like a Willy Wonka Golden Ticket,** the keys to the castle, bulletproof.

I still contend that defense counsel should always question the validity of a Hague Certificate, but for different reasons— not the least of which is that not just anybody can sign a Hague request.  I’m no longer as sure about the Kevlar-like quality of even a valid Certificate.

That said, Northrup King accepted not just a conclusion of law, but of fact.  And it’s the factual conclusion that distinguishes the two cases, so the bulletproofness (yes, I made up that word) should still overcome a motion to quash.  I can’t say with certainty whether Animal Science Projects calls that into question.

Still, it’s arguable, and worth watching the interplay of these two cases.

* The Honorable Ruth Bader Ginsburg, known in the wider zeitgeist as The Notorious RBG.  I met Justice Ginsburg in April, 2017, about an hour after being admitted to the Supreme Court Bar.  I highly recommend the experience, even if you never think you’ll argue there.

** Not my original thought.  I really don’t know whose it was.

Here’s what it would have looked like in 1933.

One of the biggest challenges in serving offshore defendant companies is ensuring that they’re properly named (see Always Name Your Defendant Entity Correctly).  Closely connected to that issue is the defendant’s address– simply put, if you don’t know where they are, I can’t get them served for you.  Both of these ideas are equally applicable to cases involving U.S. defendants, so this shouldn’t be an earth-shattering thought.  I suggested some time ago that, when executing a contract with an offshore party, a few things must at least be contemplated (see Five Essential Things…).  Chief among them is my advice to DESIGNATE AN AGENT FOR SERVICE IN THE UNITED STATES.  Do that, and you never have to retain somebody like me.

It’s not difficult– you can’t throw a rock in downtown Dover, Delaware without hitting a corporate agent.  A whole bunch of outfits are happy to accept service on a company’s behalf for a low annual fee.  But if that isn’t in the cards– ie: the offshore party refuses– at the very least, make sure the foreign entity actually exists before you hand them seventeen million dollars.

Look, if you’re a mortgage officer, and a young, nice-looking couple walk into your office so they can buy that $130,000 two-bedroom starter home, in addition to pay stubs and tax returns, you’re going to insist on a copy of their driver’s licenses to make sure they are who they say they are.

But a great number of my clients need to serve breach of contract complaints on offshore companies that the plaintiff never verified.  Now, to be sure, many of those litigants never ran their contract by a lawyer before signing… they trusted the other party, and only sought counsel when the deal soured.

But some of those contracts were drafted by lawyers who simply didn’t undertake due diligence.  Above all, lawyers…

INSIST THAT OFFSHORE COMPANIES PROVE THEIR EXISTENCE.  ALWAYS.

Even if you KNOW them.

How?  The same way the mortgage officer insists on her borrowers’ ID’s.

When a foreign* company shows up to sign a contract, insist that they provide a Certificate of Incorporation or comparable document.  Essentially, you’re demanding to see the company’s birth certificate– and you’re going to use that birth certificate to go further in your verification.  Here in Missouri (and just about everywhere else), the Certificate indicates that the company was born on such & such a date and was, at one time anyway, a real thing.  It’s not that difficult to exercise due diligence and check the SoS website to verify that, yes, InBev International, Inc.  is still an active entity or that– uh oh– Anheuser-Busch Beverage Group, Inc. is not.  [Wait– Budweiser doesn’t exist anymore?!]

Overseas, corporate registries do pretty much the same thing.  We can easily discern that British Airways PLC is an active, registered company in England, its current incarnation incorporated in 1983.  We know that its registered address is Waterside, PO BOX 365, Harmondsworth, UB7 0GB.  Handy information to have.  And when I say to my solicitor, “hey, Nigel, could you send your process server out to tag these guys?’ he doesn’t bat an eyelash.**

But if the contract was formed in the absence of this knowledge, it could make service impossible.  In short… we’ve gotta find them first, and if we can’t, the case probably goes away.

* Foreign is a term of art.  It means “from outside the jurisdiction” in two senses: (1) in the “across the state line” sense and in the (2) “you need a passport to go there” sense.

** His name is not really Nigel.

The view from Stirling Castle. William Wallace bested the English here.

Two nights ago, my wife and I returned home from an all-too-brief visit to Scotland.  The daughter of some old friends got married in a beautiful ceremony in front of stunning seaside views, and then we traveled across the country & back again (this isn’t a big deal, as the country is barely eighty miles wide at the latitude we traveled).  Along the way, Peggy was a bit puzzled at times regarding terminology.

Okay, she said, we’re in Scotland, but also in England?  Huh?

Well, no.  We’re in Scotland, but also in Great Britain, and also in the United Kingdom (for now?) and the European Union (also for now).

I tried to explain that Scots are British, and Northern Irish are UK citizens but not British, and the Welsh will smack you for calling them English, as will the Scots and definitely the folks in the Republic of Ireland.  Scotch is term reserved only for whisky (not whiskey) and cellophane tape, and you refer to a person from Scotland as a Scot or Scottish.

Confused yet?  Well, you’re not alone.  Here’s a handy YouTube video that explains– very briefly– the difference between the geographic and political distinctions in the British Isles.  It’s the shortest of the bunch, but there are a slew of others that explain the various boundaries.

This is critical stuff when serving process.  It all falls under the Hague Service Convention, but saying “I need to serve a defendant in the UK” isn’t sufficiently specific to know what law governs.  Likewise, “I need to serve an Irish defendant” leaves out some critical details.  Once the defendant’s specific location is determined, the following guides are pertinent:

  • England & Wales (unified under the same legal regime)
  • Ireland (split into two jurisdictions)
  • Scotland (again, don’t call them English, or you’ll get hit)

Let me know if you need some guidance.  My understanding took decades to refine, and I’m still unsure at times.

 

To be sure, a good time was had by all– especially at the reception where (I’m am not making this up) I watched a couple of hundred Scotsmen sing The Proclaimers’ “500 Miles” to the bride and groom before their sendoff.  It was a stunning experience.  To the new Mr. and Mrs. Baird, I wish all possible joy and happiness.