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If only they actually made these. (OttomanJackson, via Wikimedia Commons)

A few months ago, I offered up a nightmare scenario to illustrate the importance of properly serving under the Hague Service Convention.  After I mentioned it in a CLE lecture (about legal blogging, of all things), a colleague asked me a question that compelled me to revisit the issue.  “Here’s a thought,” he said… “what if somebody wins the lottery?”  Alarm bells started going off in my head.  Holy cow, I thought.  That’s an even bigger nightmare than I’d envisioned.

My original hypo suggested a divorce case, wife a U.S. citizen, husband an undocumented Mexican immigrant.  He goes back to Mexico, and she petitions for divorce, but doesn’t serve properly (she mails it, rather than going through Mexico’s Central Authority for the Convention).  The court enters a default in her favor despite the ineffective service, and she gets sole custody of the kids, quiets title to the house, and gets back out into the world as a woman unencumbered by an absent spouse.

But the husband shows up on her doorstep a few years later, only to find that she’s married again– this time to a very nice fellow she met at the Piggly Wiggly.  The husband is justifiably angry that his kids are addressing Piggly-Wiggly-Guy as “Dad” and finds a really good lawyer to reverse the carnage.

What result?  Well, I imagine that the husband would get his house & kids back, unless the judiciary loses its collective mind.  And I also imagine that counsel for the petitioner is going to be hauled before OCDC… and then into a malpractice suit.  Not fun for the lawyer.

Now add a state-sanctioned jackpot wad to the story.  Let’s say the wife throws a sawbuck into an office lottery pool.  She and her officemates split a $300 million prize– after taxes, she has a nice, tidy twenty mill to play with.

Mightn’t that constitute marital property?  Of course it might.

But in which marriage?  Not the one with Mr. Piggly-Wiggly-Guy in it.  The malpractice stakes just got a bit higher, no?

Point is, it’s up to the petitioner to properly serve the respondent.  If the petitioner’s lawyer doesn’t do the cursory research to learn the right way, he’s not only doing his client a disservice, he’s exposing his practice to some very nasty risk.

Readers here can very easily find a how-to primer about the countries most frequently served by U.S. and Canadian litigants, both within the Hague community and without.  Just scroll up to the top of this page and type the country name.  Go ahead… we’ll be here for you when you get back.

Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application. "i_am_jim" via Wikimedia Commons.
Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application.  Image: “i_am_jim” via Wikimedia Commons.

“So, Aaron, what kind of law do you handle?” ”

Anything in litigation that crosses a border.

“Oh.  Immigration?” [After a few dozen times hearing that, I revised my answer.]

Procedural issues in litigation that cross borders.

They still ask if that means immigration, but no.  No, it doesn’t.  At least not with regard to the Hague Service Convention.

However, an interesting development out of Texas last week… a naturalized U.S. citizen was denaturalized (had his citizenship revoked) because he’d lied on his application some twenty years ago.  From the U.S. Immigration & Customs Enforcement press release:

Jose Arizmendi, 54, a native of Mexico, pleaded guilty in April 1996 to aggravated sexual assault of a child in the District Court of Harris County, Texas. When Arizmendi applied for naturalized U.S. citizenship later that month — and again when he was interviewed in connection with his application in October 1996 — he answered “no” when asked if he had “ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance excluding traffic regulations.” Relying on this answer, the U.S. government granted his naturalization application and Arizmendi became a U.S. citizen later that year.

Of course, one has to wonder why he wasn’t incarcerated on the aggravated sexual assault of a child plea– and one has to wonder why the Immigration & Naturalization Service (ICE’s predecessor) didn’t at least run this guy’s prints before giving him the right to vote… but I digress.

As it turns out, when the U.S. Attorney initiated denaturalization proceedings against him, he was serving a hefty prison sentence in his native land, so the Department of Justice had to serve him under the Hague Service Convention.*  Of course, Mexico can be a tough nut to crack— even under the best of circumstances, the procedure takes 9 months or more to receive a proof of service from the Mexican Central Authority.  But he wasn’t going anywhere, so a delay really didn’t grind the wheels of justice to a halt.  Regular plaintiffs don’t enjoy the same ability to wait it out, but they have no choice.

 

* I wonder if the Hague Service Convention is truly applicable here.  By its own terms, the treaty applies to civil and commercial matters only.  Egypt, for instance, at one time refused to serve divorce papers on the grounds that it considered family law outside the scope of “civil”.  Many authorities in Germany reject requests to serve tort complaints from U.S. jurisdictions with split recovery statutes; they consider such actions at least partially punitive/retributive in nature, so quasi-criminal rather than civil.  It seems to me that a denaturalization action is quasi-criminal, quasi-administrative… not wholly civil.  Still, Mr. Arizmendi is no longer a U.S. citizen no matter how you slice it.

 

Public beach below 'Quai des États-Unis' in Nice, French Riviera. Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)
Public beach below ‘Quai des États-Unis‘ (how’s that for irony?), Nice, France.  Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)

(Hint: foreign holidays trump the judge.)

The prevailing rule: a plaintiff’s lawyer has to get things done in a timely manner (ie: yesterday) or the court gets irritated.  The judge wants a brief before she goes to bed.  The clerk’s office reminds you that they’re closing early in honor of Truman’s birthday tomorrow (in Missouri, we’re just wild about Harry).  It’s on you, counsel, to make sure things get executed in a timely manner, or your case gets kicked to the curb.  But when you’re serving a defendant overseas, you can’t always do that.

Now, it can sometimes be done quickly and under pretty odd circumstances.  My guys in London served a defendant in the midst of massive congestion six blocks from the London apartment building fire last Wednesday—as the event unfolded.  Once in a while, speed is possible, but it can almost only happen quickly in (1) other common law jurisdictions that (2) don’t prohibit the use of a private process server.  Throughout most of the civil law world, service can only be effected by a judicial officer pursuant to a request to a Hague Central Authority.  And depending on where that Central Authority finds itself, service could take weeks, months, even a year or more.  (<– That is not a typo.)

Judge Haller has zero tolerance for your crap.
Judge Haller has zero tolerance for your crap, Mr. Gambini.  He is not a jolly fellow.

To make matters worse, certain holiday seasons extend the wait even more.  Several come to mind, and they can really delay things, even more than the timetable that would normally frustrate the judge.

A little one and four big ones:

(1) The bank holiday

Occasionally, the United Kingdom and other members of the Commonwealth shut down their banking systems and tell the financiers to take a day off, Nigel– the money needs a moment to breathe.  To be sure, bank holidays are a thinly-veiled strategy to maintain religious holidays (Easter Monday, various saints’ feast days, etc.) in a secular way, but still… when speed is called for and possible in common law jurisdictions, things can be derailed a bit.

In a way, some bank holidays are no different from MLK Day or Presidents’ Day in the U.S.—they’re specific to our calendar, and nobody else observes them.  Not a huge delay, but a bump in the road that frustrates litigants who expect service to be effected on an English defendant first thing in the morning.

(2) Août

France shuts down in August.  No, I mean roll up the sidewalks, Margaret, we’re closed.  They have a very un-American view of relaxation time, re-booting the senses, and flushing out all the stress and frustration that make the American economic engine just hum along.  The whole country takes the month of August and goes to the beach.  True, somebody has to work the beach, but they import people for that.  And Pierre, the new guy, gets to stay home and run the shop while the boss and all the other staffers are recharging their batteries.  [Sorry, Pierre, the Americans didn’t get the memo and came to Paris anyway, so someone still has to drive the tour bus.]

What does this mean to U.S litigants who file Hague requests in France?  Simple: your paperwork will be delayed at least a couple of weeks—even if you get it submitted before Bastille Day (July 14th).  If you expect a proof within three months, better make it four in the late summertime.

Christmas Market, Cologne. Daderot via Wikimedia Commons.
Christmas Market, Cologne. Daderot via Wikimedia Commons.

(3)  Weihnachten

Christmas is huge in Germany (and in Italy and Switzerland and throughout Europe, really, but they don’t put the brakes on the procedure like the Germans).  So huge that, contrary to the stereotype of Teutonic efficiency, Germany turns rather French around the middle of December, and they don’t show up for work again until January 7th.  They celebrate all twelve days, complete with the partridges and pear trees and ladies dancing.

Like August in France, tack on another couple of weeks, at least, until you get a Hague Certificate back from German authorities.

(4) 春节 (PRC), 春節 (Taiwan)

The Chinese New Year or, as the Chinese themselves call it, Spring Festival.  Imagine a billion and a half people trying to get home for dinner, all at the same time.  The worst nightmares of U.S. holiday travel are multiplied by a factor of four, because everybody is compelled by tradition and respect and obligation not only to go see Mom, but to go and pay respects to their ancestors as well.  It’s like somebody took Mother’s Day, Father’s Day, Grandparents’ Day, Memorial Day, Thanksgiving, and Christmas, and crammed them together into a two-week party culminating with a Lantern Festival.  It’s big.

Now, to be sure, the Chinese don’t take off the entire two weeks (they espouse the same work-until-you-drop-dead-on-the-factory-floor philosophy that made America great), but it slows things down a bit when you need to file a request for service… they get delayed, much to the chagrin of your judge.

5)  Shalom Aleichem*

I don’t speak Hebrew and I certainly can’t pick from the list of exceedingly positive holiday greetings that become appropriate on the Jewish calendar– this one is just my favorite.  But each and every one of those holidays calls for the closure of Israeli Administration of Courts– Israel’s Central Authority for the Hague Service Convention.  Generally speaking, the Israelis are quick and efficient compared to many Central Authorities throughout the Hague community, but at holiday time, bottlenecks do occur– especially around Rosh Hashanah and Yom Kippur, late summer/early fall.

Yet not all is lost.

Federal Rule 4(m) and all but a couple of states provide a safety valve for service outside the United States (sorry, Wisconsin & Michigan—you guys will have to get creative, so call me).  Plaintiffs’ counsel is usually held to a reasonable diligence standard rather than a strict, hard-target deadline for service; a very nice shield against dismissal.  But that doesn’t necessarily keep the judge happy, and it doesn’t necessarily keep clients happy either if they think service should happen in their case just like it does in the movies.

* I’m astounded at the similarities between Hebrew and Arabic phrases (as well as Hebrew and Arabic cuisine!).  Shalom Aleichem is incredibly close in pronunciation to As-Salaam-Alaikum.  They are translated into English exactly the same way, and it warmed my heart once in college to see a rabbi greet an imam with “As-Salaam-Alaikum”… the imam replied in Hebrew “Aleichem Shalom.”

** One more lesser-known holiday:  The Feast of the Ascension.  Latter part of May, forty days after Easter.  It’s a big day in the Christian calendar, but celebrated mostly by Roman Catholics—ardently so in Belgium.  They take the whole week off.

M198, Iraq 2006. U.S. Army photo.
M198, Iraq 2006. U.S. Army photo.

Channeling my inner Army Brat here… when you grow up inside the fortress, your brain necessarily uses combat analogies even if the only uniform you ever wore was in the Boy Scouts.  Bear with me.

Before any ground assault, whether it involves footsoldiers or mechanized troops in a gun truck, an invading army softens up the enemy with a barrage of artillery fire.  They don’t just send in the guys carrying rifles.  Likewise, a defending army can do significant damage if it can lay down a decent amount of ordnance on the invaders.  They don’t just let the other guys walk right up to the gate of the compound and then shoot at them.  [Air support helps, of course, but I’m sticking to the cannon analogy here because my best friend in college paid for his degree in part because he was in an Army Reserve artillery unit.  And because howitzers are cool.]

A lawsuit is like a ground assault, and the first volley of fire comes in the form of a summons.  That summons, as we all know, must be served in a manner that is reasonably calculated to put the defendant on notice of the claim against him (those are the magic words, straight out of Mullane and FRCP 4(f)).  The rules are awfully particular when the defendant is overseas.

Yet, plaintiffs’ lawyers often go it alone, falsely confident that they know how to hit the target with the right projectile, if you’ll pardon my already-tortured analogy.  After all, it’s just a matter of filling out some paperwork, right?  I can just hire a process server, right?  The treaty says I can mail it, right?

No.  Maybe.  Not necessarily.

Don’t assume that actual notice constitutes valid notice.

Shortly after I launched my own practice in 2016, I posted my thought that defense counsel should always question the validity of Hague service requests.  I still think that, and it bears repeating, because plaintiffs get it wrong fairly often, and if nobody raises an eyebrow (neither the judge nor the defense), the case proceeds even though it shouldn’t.

Now, bear in mind—the vast majority of what I do is on behalf of plaintiffs, in every manner of case from divorce to personal injury to breach of contract… even adversarial proceedings in bankruptcy.  Advising defendants to put up a fight—indeed, helping them to put up a fight—seems awfully counter-intuitive.  But the fact is, if a plaintiff wins because nobody in the room knows any better, bad law gets made, and the plaintiff wins a potentially unenforceable judgment.

If you’re defense counsel, be inquisitive.  Don’t just let the other fellow’s troops march up to your foxhole.  Lay down a field of fire.  Investigate the manner in which your client was served and don’t assume that actual notice constitutes valid notice, because they’re not the same animal.  Of course, it may not be worth your while to fight a 12(b)(5) motion (even when you get the case kicked, if it’s dismissed without prejudice, the plaintiff can just start over and do it the right way).  But if the plaintiff hasn’t even attempted to do it properly, you’ll have a pretty good argument to get rid of the case.

M777 Light Towed Howitzer. Jonathan Mallard via Wikimedia Commons.
M777 Light Towed Howitzer. Jonathan Mallard via Wikimedia Commons.

If you’re plaintiff’s counsel, remember the invasion analogy.  Call in an artillery strike to make sure your first procedural step doesn’t get your case kicked or—worse—render your judgment unenforceable outside the United States.

In short, don’t DIY your service abroad—if self-help is a bad idea when you need to serve in Paris, Texas, how is it a good idea to handle it yourself in Paris, France?

Altstadt, Düsseldorf. Image by qwesy qwesy, via Wikimedia Commons.
Altstadt, Düsseldorf. Image by “qwesy qwesy” via Wikimedia Commons.

Serving process abroad touches virtually every aspect of civil litigation.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I handle creditors’s rights cases, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of that Ned Stark guy into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.
This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.  But he appears in all of my CLE decks.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.)

Second of all (setting my incredulity aside), let’s say you do handle collections exclusively, no visa applications ever.  What if you’re pursuing a German debtor?  (Let’s call him Dieter just for fun.)

What if Dieter bought a car financed by your client, wrecked it, and moved back to Düsseldorf the next day?  Dieter’s return to the fatherland has thrown a Mjölnir-sized monkey wrench into your otherwise straightforward plan.  You still have to initiate the proceedings, and that’s not going to be as easy as just tossing the complaint into a FedEx envelope and jetting it off to the address listed on Dieter’s MySpace page.  Serving process in Germany requires a very particular procedure.

Or what if the debtor is not Dieter from Dusseldorf– let’s say it’s Stan the soldier from Sacramento– and the Army has just sent him to Stuttgart for three years?  Stan’s status as a soldier serving overseas* makes things even more complicated than if you were serving a German citizen.

Woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (you might win a default, but good luck enforcing it… and good luck overcoming the malpractice complaint).  And it is easily avoided if the litigant and the attorney are patient and understand what requirements they must observe beyond just the rules of the venue court.

The point here is that serving process abroad touches virtually every aspect of civil litigation, and if the plaintiff doesn’t do it properly…

THIS is Ned Stark.
THIS is Ned Stark.

* Hat tip to Monty Python.  Don’t practice your alliteration on me.

Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.
Mailboxes in Rome, where Article 10(a) is acceptable. Jebulon, via Wikimedia Commons.

I called it.  It wasn’t a really stretch, but I was confident that this would be at least a 7-vote decision.  In Water Splash v. Menon, the U.S. Supreme Court this morning held unanimously (8-0, sans Gorsuch) that mail service is permissible under Article 10(a) of the Hague Service Convention, overturning the Texas Court of Appeals and, along with it, the 8th and 5th Circuits in Bankston and Nuovo Pignone, SpA.  At long last, there’s sense in the jurisprudence surrounding Article 10(a)– for years, I’ve thought the 8th & 5th were flat wrong in their approach, clinging to a very tenuous thread of logic.  Essentially, they focused on the drafters’ use of the word “send”, rather than “serve” in 10(a) and said that a drafting error rendered the intent questionable.  It’s always seemed silly to me, frankly; why in the hell would the drafters have put it in a Service Convention if they didn’t mean it was okay to serve that way?  Justice Alito said as much for the Court, though far more diplomatically.

Yet, I still hold to the same assertion:  just because service abroad by mail is legally valid, that doesn’t mean you should do it.  It’s almost always a horribly bad idea, if for no other reason, because proving proper delivery is a sketchy undertaking.  Plus that, it has to be valid under both the venue’s rules and the destination state’s declaration to the Convention.

Sorry, but it’s frequently unavailable to begin with (read: China, Germany, India, Mexico), and it’s usually is not the way to go anyway.  Article 5 is usually the safest option for serving defendants in Hague countries, but it’s not necessarily the most practical.  Article 10(b)/(c), where available, is usually quicker– and sometimes cheaper.  The choice of which method is most appropriate for any situation requires guidance.  Don’t just DIY the decision.

Richard Burton & Elizabeth Taylor, "Divorce His, Divorce Hers", 1973. Public domain (image pre-1977 without assertion of copyright).
Richard Burton & Elizabeth Taylor, “Divorce His, Divorce Hers”, 1973.  Public domain (image pre-1977 without assertion of copyright).

Serving process abroad touches virtually every aspect of civil litigation.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I handle divorces, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of that Ned Stark guy into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.
This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.)

Second of all (setting my incredulity aside), let’s say you do handle divorces exclusively, no visa applications ever.  What if your client’s soon-to-be ex-wife is Chinese?  What if she threw her hands up one day and in a fit of pique yelled at him “that’s it!  I’m going home to Beijing!” before she ran home to Mom and Pop?  Your case is only simple on its face.  Maybe they don’t have kids.  Maybe they don’t have property to fight over.  Maybe the only issue before the court is whether to dissolve the marriage.

You still have to initiate the proceedings.  And that’s not going to be as easy as just tossing the petition into a FedEx envelope and jetting it off to her parent’s house.  Serving process in China requires a very particular procedure.  If the defendant (or respondent— however the other spouse is referred to in the petition) is in the military, it can be even more complicated.

And woe be to the lawyer who doesn’t do it the right way.  The nightmare scenario really is frightening (see more here).  And it is easily avoided if the litigant and the attorney are patient and understand what requirements they must observe beyond just the rules of the venue court.

The point here is that serving process abroad touches virtually every aspect of civil litigation, and if the plaintiff doesn’t do it properly…

THIS is Ned Stark.
THIS is Ned Stark.

 

JLPC via Wikimedia Commons.
JLPC via Wikimedia Commons.

(As of 2022… French Huissiers are now called Commissaires de Justice…)

To most American lawyers, service pursuant to the Hague Service Convention means filling out an inscrutable Article 5 request form, putting a jumble of paperwork into decipherable order, and mailing it off into some black hole bureaucracy in a far off land.  In some cases, that’s exactly what it amounts to, and this is why I have a practice.  Really.

But much of the time, a litigant is better off using Article 10(b) channels to effect service.  They’re no less effective, they’re usually quite a bit quicker than the Article 5 channel, and often do not cost much more to use than that inscrutable form.  In France, Luxembourg, southern Belgium, and even Québec, the Huissier de Justice is the route to speedy and effective service.  The counterpart to the huissier in the Netherlands and Flanders (northern Belgium) is the gerechtsdeurwaarder, and in Italy, Ufficiali Giudiziari.  They serve a substantially similar function (I use the term huissier from here to apply to all– merely for simplicity).*

For reference:

Article 10.  Provided the State of destination does not object, the present Convention shall not interfere with (…)  b)  the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination (…) .

In short, a lawyer in the US can directly hire a huissier or gerechtsdeurwaarder to serve process in countries that do not object to Article 10.  Applying to the Central Authority under Article 5 is superfluous… you may as well just cut out the middleman, because the Central Authority is going to hand the request off to a random bailiff for execution anyway.

But beyond speed, what is the benefit?  Simply put, control.  If you hire a judicial officer directly, you determine who handles the documents, you reduce the number of hands they pass through (and thus reduce the chance for error), and you can prevent ineffective service because the person working the job doesn’t know what law you need to apply.  I’ll elaborate momentarily, after a bit of explanation of what a huissier actually is.

First and foremost, a huissier is a lawyer– a fully trained attorney who has chosen a specific career track in a specialized field.  In civil law jurisdictions, lawyers don’t just choose between transactional and trial work or between criminal and civil.  Very early in their career progression (perhaps even while in law school), they’re tracked.  Some become administrators, some transactional attorneys, trial lawyers– even judges– very soon after law school… and some choose the huissier track.  Depending on the country, huissiers may have a statutory monopoly on service of process functions, the drafting of conveyances & deeds, and the execution of judgments (think seizures, like walking into a bank and pulling all the money out of a losing defendant’s account).**

If an American lawyer can directly hire one of these folks to serve, we aren’t always subject to the luck of the draw.  It’s usually all up to us.

  • In the Netherlands, we can avoid the erroneous application of an EU requirement that ALL pleadings be translated into Dutch (they don’t necessarily have to be).
  • We can actually communicate with the person serving process to ask that they not serve a dissolution action on a respondent by handing the documents to the petitioner’s teenage son (this actually happened… “um, Mom, are you and Dad getting a divorce?”).
  • Fortunately, service by huissier is not substantially more costly than going through a Central Authority.  In many cases, it is my primary recommendation, and in some cases, my only recommendation.
They're definitely not this creepy guy.
They’re definitely not this creepy guy.

Don’t let the fancy titles fool you– these folks are just lawyers, like you and me.  And for the most part, they are incredibly gracious, cordial, and professional.

* Germany, Austria, and German-speaking Switzerland likewise use deurwaarders (in francophone Switzerland… huissiers), but those countries object to Article 10 entirely, so discussion here omits them.  I include Austria in the Article 10 objection on an anticipatory basis– the HSC hasn’t entered force there yet, but I am 99.44% certain the Austrians will join their closest neighbors in objecting to Article 10.

** Bailiffs can also play a special role in mitigating the defendant’s stress, especially in high conflict family law cases.  They’re often the defendant’s only resource for guidance.  At that, however, if the bailiff is the wrong sort of person, their lack of compassion can make matters worse, so choose carefully.  See the second bullet point above– I once had a German bailiff (who I could not select) serve divorce papers on a wife by handing them to the couple’s 14 year-old son… not exactly tactful, in my estimation.

The Straight of Dover, which is about to get a bit wider. NASA photo.
The Straight of Dover, which is about to get a bit wider. NASA photo, via Wikimedia Commons.

A frequent scenario of late (I really do get this frequently):  I’ve just met another lawyer at…

  • an alumni association event,
  • dinner at a friend’s place,
  • in the lobby of the Kauffman Center during a Kansas City Symphony performance…

Hi, I’m (insert lawyer’s name here).  

Nice to meet you, I’m Aaron.  Tell me about your practice.

Oh, I handle (insert practice area here).  How about you?

Well, I handle all the goofy procedures in litigation that cross borders.  Primarily Hague Convention issues (and there are a whole bunch of those).

Hmmm.  That’s really interesting.  How do you think Brexit is going to affect what you do?

An insightful question.  And on the surface, it might seem pretty monumental– Brexit is rippling through the global economy like an Oklahoma tremor ripples through Kansas City.*  That is to say, it’s been relatively subtle so far– but we’re bracing for the Big One.

Still, my answer to the lawyer I’ve just met is usually, “it won’t.”  So the PM has called a snap election.  Big deal.

The sort of issues I handle– service of process abroad, foreign evidence compulsion, overseas enforcement of judgments– aren’t really a part of the European Union framework.  To be sure, if my clients were in the UK or on the continent there might be some shakeup, but I honestly don’t foresee the needle moving much in my line of work over the next two years (the timeframe for the UK’s invocation of Rome Article 50).  At least, not on the procedural end of things, and pretty much everything I do is procedural.

  • Service of US process will continue to be handled the same way across Europe– including the UK.
  • You still won’t be able to serve a subpoena with any teeth.  Full stop.
  • Your judgment will still have to be recognized and enforced by a foreign court before you can march into the defendant’s foreign bank and drain his account.
  • Eddie Izzard** will still perform in Paris and in Vienna.  He’ll just have his ID checked by a French cop before he gets on the Eurostar at St. Pancras.
  • And we yanks will still have to show a passport when we land at Heathrow or DeGaulle or Fiumicino or Schipol.  (At least, I hope it stays that simple.  Regardless… not a Brexit thing for us.)

Of course, there may be some longer term effects.  The absence of a free trade agreement may prompt Fiat Chrysler Automobiles, N.V. to pull its headquarters from London (Dodge boys might have more fun in Amsterdam?).  Other primarily continental outfits may do likewise.  This means it won’t be so simple to serve them (translation, possible Article 5 exclusivity, etc.).

More broadly, the EU may look more toward the US as a source for products and services that were previously offered by Britons and British companies (financial services come to mind as the primary industry) on a lower cost basis.  Those same Britons will look more to the US as a ripe market.  Likewise, the EU may look to the US in the same way.  Essentially, both the UK and the EU will pivot to the US as a partner.  This means that, as transatlantic commercial activity grows, so too will transatlantic litigation.

It all remains to be seen.

eddieizzard* Oklahoma and Kansas City are inextricably linked, thanks to Rogers and Hammerstein.  Everything’s like a dream in Kansas City.

** Holy executive transvestites, Batman!  This guy is funny.  If you get a chance to see him live, DO IT.  (My favorite Eddie Izzard bit is his riff on Darth Vader visiting the cafeteria on the Death Star.  Caution… Darth drops an F-bomb or two.)

 

Brandenburg Gate, Ondřej Žváček via Wikimedia Commons.
Brandenburg Gate, Ondřej Žváček via Wikimedia Commons.

An interesting Catch-22 sometimes faces U.S. lawyers when they try to serve a complaint with punitive damages on a German defendant.  Germany’s public policy disdains punitive damages– indeed, until recently (that is, until the last couple of decades), they didn’t even conceptualize punitives in their legal thought process.  But an increase in American litigation has made the idea part of the zeitgeist, as it were.

The scenario:  lawyer files product liability suit against U.S. company and its German parent.  Suit is fairly straightforward and routine, including actual and punitive damages, no different than a garden-variety personal injury case.  Lawyer knows that she has to properly serve the German company, so she calls me or somebody like me, and we get a Hague request submitted to the appropriate German authority.  Three weeks later, a letter arrives that says “sorry, R.A.* Lukken, but we will not serve these documents because Missouri has a split-recovery statute.”

“Huh?” she and I both say in response.

I’ve seen rejections that include punitive damages, and I’ve seen requests including punitives make it through the process without a second glance.  Ted Folkman has addressed the issue many times at Letters Blogatory.  It was in connecting the dots between a Ted post and a recent split recovery rejection that I realized… in order to get around the problem, a bit of nuance illustrates why the Germans reject some, but  not all, punitive damage requests.  I leave the theoretical/jurisprudential analysis to Ted– this is about the nuts & bolts of how to get around the problem.

It is not that Germany disdains punitive damages.  Truly, such a rejection would violate the terms of the Hague Service Convention, which sets out two bases for rejection:  (1) you screwed up your paperwork,  and (2) the request somehow violates the destination state’s national sovereignty or security.  End of list.

  • “Sorry, but we think we have jurisdiction here”… not a valid basis for rejection.
  • “What you say they did?  Yeah, that’s not a bad thing, so we’re not going to serve this.”  Also not a valid basis for rejection.
  • “That company is owned by the state.”  Not technically valid, and the Germans will reluctantly serve as requested (although I’ve seen these get rejected, too).

So the “we won’t serve a complaint that includes punitive damages” is, on its face, also not a valid reason for rejection.  They will reluctantly serve those.  The question doesn’t turn so much on the scope of the verdict as on cui bono— who benefits– from it.

Who benefits from split recovery?  The state— usually to the detriment of the plaintiff and often of the lawyers who bore the cost to bring the matter to trial (bravo to Utah, which recently found split recovery unconstitutional).  This makes the civil suit seem not solely like a civil suit, but one with an element of criminal or (at least) administrative retribution to it.  And that is where foreign governments find the easiest basis to reject.  If it’s a criminal or administrative proceeding– thus leading to a fine or penalty, rather than compensation for a tort victim– it falls outside the scope of the Hague Service Convention.  Why?  Because the Convention pertains to Civil or Commercial Matters.

Simply put, in the German equation:

  1. This complaint will not only benefit the plaintiff, but the state of Missouri (or one of 9 others) as well.
  2. Such a retributive penalty falls outside the scope of a civil or commercial lawsuit.
  3. As it falls outside that scope, it also falls outside the Convention.
  4. Result: we aren’t going to serve it via the Hague procedure.**

The net result?  The nuts & bolts way around the problem?  Don’t worry about Hague channel rejection.  Don’t just jump to self-help, either, but know that with the right motion, you should be able to serve by an alternative method under the regular rules of the court.  That actually makes things easier in some cases.

Just make sure you have a plan for enforcing the judgment down the road.

*  R.A. stands for Rechtsanwalt— attorney– and lawyers are addressed as such.  In fact, we’re addressed formally in lots of places.  (R.A. stood for Resident Assistant during my sophomore year in college, but that was long ago and far away.)

** Egypt, historically, has rejected service requests for divorce petitions on similar grounds, determining that divorce is a family and religious law issue rather than a civil one.  We make no such distinction, but they do.  Since the fall of the Mubarak regime, Egypt’s judiciary has waffled a bit– and has allowed a few dissolutions to get through.