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Thirty years ago today, the Nine Wise Souls heard oral arguments in the seminal case, the kingpin-opinion, the granddaddy precedent, in what I do.  Volkswagenwerk Aktiengesellschaft v. Schlunk, (opinion issued that June, and available at 486 U.S. 694) involved a wrongful death suit against the German automaker and its U.S. subsidiary.  The plaintiff, whose parents were killed in a highway collision, served the German parent company via the subsidiary, which happened to have been headquartered in Chicago at the time.

Now, ordinarily, I argue that you can’t just serve a subsidiary.  The very idea of it tends to disregard the corporate veil.  But Illinois happens to have a statute that allows precisely that– if a foreign* parent has an Illinois subsidiary, then that sub is designated by law as an agent for service on the parent.  On the surface, it might seem that this conflicts with the Mullane doctrine (service must be effected by a means reasonably calculated… to put the defendant on notice, and afford him an opportunity to defend), but it stands to reason that if the sub knows, they’re going to tell the parent.

But the issue in Schlunk was only related to Mullane analysis in part.  Accepting the validity of the statute, Justice O’Connor disposed of the matter pretty quickly…

Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. (…)  (C)ontrary to VWAG’s assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national.

However, if you can’t get the job done here, and you have to serve the foreign national in his/her/its home country (assuming it’s a treaty member), then you have to follow the treaty.  Period.

It’s as good as holy writ today.  In 1988, it wasn’t so certain.**

(If you have an hour, you can listen to the orals here.)

 

* Foreign is a term of art, and it doesn’t just mean “outside the United States.”  It means “outside this particular jurisdiction.”

** I was a junior in high school at the time.  I was certain about everything.

Jimmy Sellers was my best friend in the sixth grade– and best man when Peggy and I got married.  We never went to an art museum in 1982.  [This is how we would have forged the thing.  Both of our moms were NCO wives, so we would have gotten smacked.  Hard.]

Alternate title:  How to Get a Judge to Sign a Letter Rogatory.

It’s actually quite simple.  Rather like getting your mom to sign your permission slip for a sixth grade field trip to the art museum.

No, really.  There’s not a whole lot of fanfare in asking a judge to sign a Letter Rogatory for service in a non-Hague country.  Although nothing really mandates its use, this old-fashioned device can be critical to enforcing a judgment down the road.  Just mailing process to serve is usually a bad idea, and professional process servers don’t exist in civil law jurisdictions– at least not in the way we comprehend them in the common law.

If you might have to ask an overseas court to enforce a judgment against a defendant served in, say, Taiwan or Singapore, one of the first things that court will examine is how you served process.  The Letter Rogatory removes all doubt that service was effected according to the law of the jurisdiction where process is served.

Unquestionably, it is natural for a practitioner– especially a newly minted associate– to feel a bit of trepidation about the procedure.  Relax.  This instrument is a pro forma device, and courts understand its validity, because they use them to request judicial assistance from state to state.  Missouri judges send Letters Rogatory to Alabama and Oregon from time to time.  It’s not a daunting task, as long as counsel explains the logic to the court.  That just requires the right vocabulary, in a Motion for Issuance of Letters Rogatory:

  • Motion:  “Hey, judge, we need (XYZ) and would appreciate it if the Honorable Court would grant our request for (XYZ).”
  • Issuance:  The judge signs the Letter, making it an officially “issued” document.
  • Letter Rogatory:  Just a note from one judge to another, asking for a little help– for service of process, compulsion of evidence, the chance to have dinner with the Chief Justice of the Constitutional Court while the American judge is in Paris on a CLE adventure (hint, hint)…
  • One more term worth noting:  Execution of the Letter.  That’s what the foreign* judge does when s/he orders her/his staff to do what the Letter asks.

Simply another way to keep the wheels of justice turning.  Don’t be intimidated by it.

Unless your mom was intimidating when you asked her if you could go on that field trip in 1982.  In that case, flowers are always good.

* Foreign is a term of art, meaning anything outside the jurisdiction.  It doesn’t just apply in a “you need a passport to go there” sense.  It can also mean in the “across State Line Road” sense.  French law is foreign to Missouri, but so is Kansas law.  (Around here, we Missourians argue that Kansas is foreign to everything, but that’s all in good fun.)

These are dry cells– not batteries. Far less likely to explode than the lithium ion devices at issue here. (They’re also far less capable of doing the job.) Public domain, Wikimedia Commons.

Back in law school, I marveled at the most prevalent type of case discussed in Product Liability class… exploding pop bottles.*

To hear Allen Rostron (my P.L. professor, now Associate Dean Rostron) tell it, the whole of tort law developed on two concepts:  (1) unfortuitously agitated carbonation and (2) the brilliance of the Honorable Stanley Mosk.

Sure, I exaggerate– fireworks and railroads helped— but I still can’t get over how much the field of law developed along with the modern bottling industry.  Today, injuries from ruptured beverage containers are a rarity, in large measure due to the plaintiff’s bar (the same goes for just about everything else in the modern world that used to hurt people and doesn’t anymore).  At the base of product liability law is a very simple thought process:  “Hey, if I buy this thing, will it cause me severe bodily injury?  No?  Great!  Take my money.”

In an excellent post over at the Product Liability Blog, my Wisconsin colleague Rich Schuster discusses E-Cigarette Explosion Cases and Legal Practicalities.  Setting aside the debate about the respiratory risk of “vaping”, Rich offers that “the need for more power in smaller packaged batteries, coupled with questionable supply chain practices marked by non-existent or inadequate quality assurance testing, can lead to the unintended consequence of battery cell explosions.”

Yes.  Explosions.  The things blow up.

Let’s consider the vape user’s subconscious analysis:  Hey, if I buy this little device that will efficiently administer a legal drug of my choice, will it blast a hole in my leg?  No?  Great!  Take my money.

Of course, we don’t actually ask the question.  But it’s still part of the analysis, and it’s at the heart of the legal calculus in defective product cases– our expectation of a safe product is the foundation of the claim.  Users of e-cigarettes often have a tough time gaining sympathy from their fellow citizens when the product inadvertently blows up, and that’s awfully unfair.  But change one word in that equation and the kindness flows– instead of e-cigarettes, how about phones?

Phone users meet with great sympathy from their fellow citizens when the product inadvertently blows up.

It’s essentially the same technology involved.  A dense mass of various metals and potentially volatile liquid chemicals jammed and sealed into as small a compartment as possible, for the purpose of generating a sufficient electrical current to power a consumer device.  Phones, vapes… really, they’re the same thing.  And why?

Because when you buy them, you naturally expect them to NOT BLOW UP.

Phone batteries don’t have quite the same supply chain issues as e-cig cells, and they need a smaller amount of current over a longer period of time, but a battery is a battery in the mind of the reasonable person.  You expect them to generate the amperage and voltage you need over the expected life of the device, and then… it just fades away.  It does not turn into a violently expanding ball of flame.

So, what in the heck does this have to do with the Hague Service Convention? 

Well, as Rich in Wisconsin puts it, “Manufacturers of e-cigs batteries are frequently Chinese corporations with few or no ties to any particular state.  It can be difficult to achieve proper service of process over these companies… (and it) can also be difficult to convince clients to incur the costs to even attempt service… .”

He’s absolutely right.  The costs are high, although there are ways to mitigate them, at least a bit.  But if you do sue the vape shop owner and the manufacturer’s U.S. distributor and you don’t bring that manufacturer into the case, you can count on the American defendants pointing the finger right back at China.  Especially in states with innocent seller laws, you may get nowhere without having the manufacturer haled in.

Likewise, if you sue the store where you bought your fancy Model TK-421 smartphone (it blew up, of course), don’t you think the merchant might demur, opting to pin the blame on the Korean or Chinese or Vietnamese company that made the thing?  Ibidum.

Whether it’s an exploding e-cigarette battery or an exploding phone battery, the suit goes nowhere unless you properly serve your offshore defendants.  So do it right the first time— don’t simply wait until you’re past zero barrier.

* In the Midwest, we call it pop.  Get on board with that if you want to stay here.  If you call sweet, fizzy soft drinks “soda”, you’re wrong.  Soda is white powder in an orange box, and its job is to keep the fridge from stinking.  If you call it “Coke” you’re doubly wrong, and should seriously consider your profession, because… precise language, counselor.   “Soda pop”… well, you get a pass, because, at least you’re trying.

**  Seriously, you’re telling me that sucking that ionized chemical cocktail into your lungs isn’t horrendously bad for you?  Pull the other one.

Hedwig‘s cousin, Dave, who used to deliver mail for a grumpy old warlock in Hogsmeade.  When he retired, Dave found life in the Muggle world far less taxing. [Floyd Davidson via Wikimedia Commons.]
Last May, the Supreme Court resolved a circuit split– quite decisively– over the validity of serving a defendant by mail under Article 10(a) of the Hague Service Convention.  In Water Splash v. Menon, the Court cleared up all debate and held that, yes, Hague mail service is fine… under certain conditions.

The big condition: the destination country (ie: where the defendant is located) can’t object.  Many countries do object, so if you need to serve in China, Germany, Mexico, or Switzerland (just to name a few), sorry.  You can’t.  It isn’t valid in those countries, regardless of Water Splash.

And perhaps even more critical:  the forum court’s rules have to allow it.  If the case is being heard in a jurisdiction that views mail service as invalid,* the Hague Service Convention doesn’t magically make it okay.  There’s no fancy spell that Hermione Granger can conjure up to confer validity on mail service.  Professor Dumbledore cannot simply wave his wand and make it okay.  Harry Potter can’t just send Hedwig instead of hiring a process server.  (I’ll stop.)

So the Supremes sent the Water Splash case back down to Texas, where, as luck would have it, the state courts don’t allow mail in the first place.  After all that fighting over Article 10(a), the parties missed the far simpler argument.

Regardless, mail is a bad idea except in the rarest of cases anyway.

* My personal take:  mail isn’t a means reasonably calculated to put a defendant on notice of the claim against him/her/it (see Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).  Mail is almost as horrible a legal fiction as publication, when it comes down to it.  Don’t get me wrong– I still think the U.S. Postal Service is a pretty effective outfit, despite how much it is maligned by the very people who govern it (I’m looking at you, Congress).  But even though the Post Office might deliver a letter, that doesn’t reasonably ensure that the right person receives the envelope.  If you have to mail it, I suggest a belt & suspenders approach: serve by mail, in conjunction with email and Facebook.

CIA World Factbook, via Wikimedia Commons.

This blog carries a good many posts about country-specific procedures under the Hague Service Convention, and that’s completely intentional.  But until now, there hasn’t been a consolidated list of them, easy to click and access.  Here’s a handy index of “how to” posts for serving in the most prevalent countries in the Hague community:

And a trio of non-Hague countries for good measure (just because they aren’t Hague signatories doesn’t mean all is lost):

Curious about a particular country that isn’t listed here?  Check the search bar above, and if I haven’t written anything about it, by all means, tap me on the shoulder at hlb@vikinglaw.us with a suggestion.

RalphGL, via Wikimedia Commons.

Due Process isn’t solely an American idea.  It goes by other names in other countries (natural justice in Canada), but it is still a bedrock concept in most judicial systems that espouse fairness and the rule of law.  Germany, in particular, views due process rights as inherent and inviolable (this is the central tenet of its Basic Law, arising as a reaction to the horrors of Nazi tyranny).  Accordingly, when German authorities receive a Hague Service Request accompanied by a “date certain” summons, they are meticulous about ensuring that a defendant has sufficient time to retain foreign counsel to litigate.

Put another way, if a summons demands a German defendant’s appearance in a U.S. court on a specific date, the request for its service has to arrive at least two or three months in advance.  The bureaucratic wheels must turn and the defendant must be afforded time to answer.

Example:  the summons indicates a hearing date of June 1st.  The defendant should reasonably expect at least three or four weeks’ answer time,* so it has to be served by May 1st, if not earlier.  But that isn’t the date the request should arrive in Munich or Berlin or Freiburg.  Anticipate at least a two-month processing time by the German authority– preferably three (or even four).  This means that if the forum court demands the defendant’s appearance on June 1st, the request can’t arrive later than March 1st.   February 1st is better, and January 1st is better still.

An even more problematic variation:  any summons containing self-expiring language, such as a bankruptcy court summons to an adversarial proceeding.  “This summons shall expire 30 days following its issuance” is especially difficult to handle, as it leaves no latitude for the plaintiff to adhere to the mandatory nature of the Hague Service Convention.  In just about all cases, these summonses die sitting on the desk of a clerk– awaiting processing.

The only solution there is to remove all “date certain” deadlines or expiry language, if possible.  If the forum court won’t work with you, you’re in a Catch-22 situation.  Not fun.

And the only practical solution to the “date certain” dilemma:  push the thing out far enough to allow the Germans to do their job.  For Mexico, India, China, and Venezuela… give it at least a year.  No, seriously.  I mean it.

 

* NB: ordinary U.S. federal summonses carry a 21-day answer deadline (and most states between 21- and 90-day deadlines), but these are not problematic, as the required answer period relies on the date of service– not the court’s calendar.  These sorts of summonses usually sail through without any raised eyebrows.

“Wet ink”: exactly what you think it means.  (I like fountain pens.  They make my scribbly handwriting look almost elegant.)

An interesting quandary popped up a few weeks ago.  My client (all of my clients are fellow lawyers) told me that he’d just received the translations of the documents he needed to serve in China, and was about ready to file them with the court.

I was a bit puzzled.  What do you mean?  File the translations with the court?

“Well, yeah,” he replied.  “You told me I needed a wet ink* signature on the summons.  I needed the translation so the clerk could sign it.”

My response:  Yes, the clerk needs to sign the summons itself.  Not the translation.

Translations are required– or at least, necessary– for service in just about every country in the world that wasn’t once a British colony.  It’s even necessary in one jurisdiction that was once a British colony (je te regarde, Québec!).  But the translation is only sent so that the foreign government and the defendant know what the operative English documents say.  The translated copies are not operative in and of themselves.  As such, they don’t have to be filed with the venue court in the United States, and they don’t need to carry the same signatures & stamps as the originals.  They just need to tell a foreign reader what the stamps say.

In short, translate after you have everything filed.

Think of it this way– if the documents aren’t ready to hand to a process server in Pennsylvania or Idaho, they aren’t ready to hand to a translator.  They also aren’t ready to hand to someone like me for submission of a Hague Request.

Now, to be sure, there are a whole bunch of issues to keep in mind when selecting the right linguist.  There are many out there, both good and bad, so don’t just go for the low bid, because it really could come back to haunt you.  Keeping translation costs down is a challenge, but that’s under your control, Mr. or Ms. Litigator– not the translation provider.

Regardless, the timing of the translation is exceedingly straightforward: do it after you have the documents assembled, as if the defendant is in Pennsylvania or Idaho.  Everything that would be handed to a defendant here at home must be handed to a defendant in a foreign country– and if translation is necessary, every page, every word, and every text-bearing image must be formatted in the foreign language.

* Some Central Authorities in the Far East– especially in India & China– are skeptical of laser print copies of service documents.  They don’t necessarily view those copies as authoritative or as “bearing the imprimatur of the court.”  I think that’s with pretty good reason, frankly– anybody can print a document from PACER if they have access, so a little skepticism is warranted.  Still, the easiest way to overcome the skepticism is to have the court issue a summons over a “wet ink” signature, preferably with a stamp or embosser or a pretty red ribbon like they still have in some places.

This means the clerk has to actually pick up a pen (gasp!) and sign her/his name to the document.  This also means the clerk will look at you like you have three heads (it’s 2018, counsel– are you nuts?).  Just explain that, because the documents are going to a foreign country, they have to imagine it’s 1978 again.  Or point them to this blog.

A field of opium poppies in… England? (Andrew Smith, via Wikimedia Commons)

Cities, counties, and states across the country are launching an avalanche of lawsuits directed at pharmaceutical manufacturers who allegedly colluded to overprescribe and overdistribute narcotic pain medications.  They’re joined by health insurance carriers, unions,  pension funds, and other interest groups in perhaps the most massive group of cases in history.  See here for just the latest (at the time of this writing) New York Times story on the issue.  I have to disagree with the Times on one point: this is far bigger than the tobacco litigation of the 1990s.

The big name defendants:  Amerisource Bergen, Pudue Pharma, Mallinckrodt, Jansen, even Johnson & Johnson (yeah, the baby shampoo guys!).

But a little less known are the foreign companies named in many of the suits… Allergan plc (formerly Actavis plc), Mallinckrodt plc, and Teva Pharmaceutical Industries Limited.  These defendants, barring an agreement to waive or accept service of process here in the United States, still have to be served pursuant to the Hague Service Convention.  Litigation teams cannot just assume that, because they’re already litigating other cases, it isn’t necessary to serve them.  Proper formalities must still be observed, and that means different things in different countries.

Specifically:

  • Allergan plc… Ireland
  • Mallinckrodt plc… England
  • Teva Pharmaceutical Industries Limited… Israel

Fortunately, none of those three countries are particularly arduous, but it is still important to know the differences between them.  They don’t all work the same– and they certainly don’t work the same as northern Ohio!

Public Domain, Wikimedia Commons.

An attorney called me last week from Chicago.*  He said that his client’s five year-old son had been plucked out of Illinois by his father and taken to the father’s home country, Poland.**

The lawyer’s two questions:  (1) how quickly can I get the father served with a summons and custody petition under the Hague Convention, and (2) how difficult will it be to get the Polish courts to enforce the order once Cook County issues it?

Well, to answer your questions, (1) a few months, and (2) it’ll be difficult and costly. 

But those aren’t the right questions.  If I read you correctly, the primary objective is to get the child back, right?  (“Of course,” replied he.)

Then I have some good news for you.

See, in any matter involving a cross-border dispute, you’ve got to work in the right treaty– child custody questions are no different.  But “the Hague Convention” doesn’t exist.  Poland and the United States are indeed party to the Hague Service Convention, and that’s the treaty the lawyer had in mind.

The right question here is “what is the proper procedure for securing the return of an abducted child under the Hague Child Abduction Convention?”  That’s where the good news lies, because much of the world shares our view that the speedy return of a child to his home shouldn’t have to wait on lengthy and arduous court proceedings, especially where those court proceedings could take months to even initiate given the strictures of the Service Convention.  Poland and the U.S. are also party to the HCAC, which provides a more expeditious mechanism for securing a child’s return home than regular transnational litigation can offer.

Under the Abduction Convention, a court proceeding isn’t entirely necessary.  If it can be demonstrated that a child has been removed from his or her country of habitual residence without the consent of a parent– or if a child is taken abroad with consent but not returned as expected— then the matter is reduced to cooperation among law enforcement agencies rather than a question of judicial comity.  Put another way, it’s a quasi-administrative matter, rather than judicial procedure.

Step 1:  contact local law enforcement.  They’re the first actors in the drama, as it were, and they should handle most of the heavy lifting, thus saving the U.S. parent substantial costs.  The police will work through the U.S. Department of State to coordinate with law enforcement in the other country, with a single goal in mind: get the child home.  All of the wrangling over custody orders and child support comes later.  You’re not going to serve a custody petition, litigate the matter, and drag things out to an eventual order… that’s not the optimum course of action.

Notice that there’s no Step 2.  That really depends on what the police and State Department are able to do on the other end of the line.  (The State Department’s FAQ site can be accessed here.  Lots of preventive and remedial measures are available.)

Of course, this is an awfully reductionist view of the process– there’s far more to it than can appropriately fit in this space.  The bottom line is that securing the return of an abducted child does not require the same procedure as getting a divorce or winning a tort judgment.  A specific international legal doctrine provides for “the prompt return of children wrongfully removed to or retained…” ***

Handy stuff.  And cause for at least a bit of relief for parents whose children have been taken abroad against their wishes.

* No, it wasn’t really Chicago.  Names have been changed to protect the innocent.

**  No, it wasn’t really Poland.  This is illustrative.

*** The Convention doesn’t apply only when a child is taken without a rightful parent’s consent.  It also applies when the child is taken with parental consent, but not returned as agreed.  The typical scenario: little girl goes to Germany to spend the summer with Oma & Opa, and they (or the other parent) refuse to bring her home before school starts in the fall.

Via Wikimedia Commons.

On at least three separate occasions in as many weeks, a client or client’s paralegal has asked me for guidance on the issuance of a summons.  In each case, the clerk of court insisted that (1) a special summons was necessary in order to comply with “Hague Convention requirements”, and that (2) the foreign Central Authority had to be appointed as a special process server.

Ahem, no.  Neither is accurate.

For starters, there’s no such thing as THE Hague Convention.  There are more than three dozen of them.  Now, here, it’s obvious they mean the Service Convention, but still… just naming the proper treaty seems to be a challenge.  [For elaboration, see Überpicky Vocabulary Distinctions, Volume 2: Get the name of the treaty correct.]  More importantly, though, there isn’t a single phrase in the Hague Service Convention that requires a special version of a summons.  Not one.  If you’re suing three defendants in Chattanooga and two in China, the same summons will work for all of them.  You don’t need a different form for the offshore targets, because they do precisely the same thing: command the defendant’s answer and appearance at court.

If the clerk says otherwise, the clerk doesn’t understand the mechanics of the procedure.  The Convention addresses the manner of service [the heart of a 12(b)(5) motion] rather than the substance of the service documents [which falls under 12(b)(4)].  In short, Hague doesn’t care what gets served– just how.* Some Authorities in Asia may ask for “wet ink” summonses (that is, signed and stamped by hand– as if it’s 1987 again), but no special form is necessary.

As to the U.S. court appointing a Central Authority as a special process server, again… no.  The how is not determined by forum rules when a defendant is located outside the United States.  The laws of the country and locality in which they’re served govern the manner of service, and our courts must defer to those foreign laws.  The assertion by a U.S. court that it has the power to appoint a foreign Central Authority to serve in that Authority’s own jurisdiction… borders on insult.  Not only that, but it completely disregards the Supremacy Clause.

Now, the clerk may have a vague understanding that Hague forms must be signed by a court official, an attorney, or someone designated by the court.  That’s another matter entirely, and it misses the point that the lawyer can handle the entire thing.

* Two exceptions:

  1. Summonses that expire by their own terms.  See here for how that applies in bankruptcy court, and here for how that applies in several state courts.  In those situations, know that it usually takes longer to serve than the summons lives.
  2. Subpoenas.  They aren’t process, but then again, the Service Convention isn’t limited to process.  It covers the service of “Judicial and Extrajudicial Documents.”  To common law lawyers, that necessarily includes subpoenas, but not to the civil law community.  Subpoenas are governed by a different treaty– the Hague Evidence Convention.  A wildly different creature, that one.