Search how to serve process in

Ancienne boite aux lettres. Plus jamais le facteur ne s'arrêtera car celle-ci est abandonnée, inanimée depuis maintenant trop longtemps. Old mailbox. Never again will the postman stop because this one is abandoned, inanimate for too long now.
Free Nomad, Unsplash

[Covid-19 Update, 2020 and beyond:  Service by mail just became an even worse idea… and it hasn’t truly improved much since the pandemic waned.  Signature requirements just aren’t adhered to like they used to be, and even where they are, it’s tough to actually discern who really signed for anything.]

At first glance, simply mailing a summons & complaint is the easiest, most hassle-free way of serving a defendant located abroad.  Looks can be (and in the Hague Service world, usually are) deceiving.  Unless you have no other recourse, it’s an awfully bad idea to use such a simplistic method to serve.

Keep proof in mind.

Even if you’re on solid legal footing (which is questionable—and I’ll get to that in a moment), you have a massive fact problem.  As in, “prove it, pal.”

Valid mail service, at least under federal rules, assumes that a return receipt can demonstrate a defendant’s actually getting the delivery in his hands.  Even in the U.S. this can be tough to prove, but when you go outside the country it gets decidedly more difficult.

Say you’re serving a big French corporation.  You use FedEx, which is widely considered as good as—if not better than—the U.S. Postal Service.  FedEx drops the envelope off at the mailroom and emails you notice of delivery.

Don’t pop any corks just yet.  Who signed for the thing?  Is “E. Macron” a sufficient indication of the signer’s name?  Is it a legible signature?  What is his/her role in the company?  Did you identify the appropriate address for service under French law?

That’s what I thought, counsel.  You can’t demonstrate to the court that the right guy in the right place signed for the delivery.  (Hint: Emmanuel Macron is the President of the French Republic.  Doubtful that he’s the fellow accepting deliveries in the mailroom at Citroën.)

Even if you could demonstrate it…

Watch for validity in the defendant’s home country

The Hague Service Convention—specifically, Article 10(a)—allows for service of process via postal channels.  Essentially, the “postal channels” idea encompasses good old U.S. Mail (and its foreign counterparts) and courier services like FedEx, UPS, DHL, and other regional providers.  But the method is only valid if the Destination State (the country you’re serving in) doesn’t object.

In Germany?  Nein.

How about China?  没有。 (Which is to say, Méiyǒu.)

Surely those efficient folks in Switzerland approve it?  Nein/Non/No.   (Curveball there.  Switzerland speaks a whole bunch of languages.  German/French/Italian…)

Maybe Japan? ほぼ。 幾分。 (Hobo. Ikubun.  Which is to say, almost, somewhat.  The Japanese are a bit cagey about their view on mail.)    As of 2018, いいえ.  Īe.  No– Japan clarified that mail is out.

Point is, if the Destination State objects to mail, don’t even bother trying it, because the forum court’s view doesn’t matter.  It ain’t valid under the treaty.  (See here for why.)

Still, if the Destination State is okay with it, you’re still not done…

Is it valid in the forum court?

In state court, look first to the applicable rules of civil procedure.  If mail doesn’t fly there, Article 10(a) isn’t going to make it so (Article 5 will, but that’s a different issue).  Under FRCP 4(f), yes, overseas service by mail is valid.  But– and it’s a yuuuge but…

A significant circuit split throws the whole idea of Hague mail service into question.  The 5th and 8th Circuits have held Article 10(a) invalid due to a drafting error.*  The 2d and the 9th are perfectly okay with it, seeming to giggle a bit at the reasoning used by 5 & 8.  Other circuits have avoided the issue, but the trend at the District level is to say no, nein, méiyǒu. **

But, let’s say the rules are with you…

Have you mailed it correctly?

(For more on this, see Hague Mail Service… if you must do it, do it right.)

Rule 4(f)(2)(C)(ii) requires that the dispatch of documents be addressed by the clerk of court.  That is, the plaintiff’s lawyer (or the litigant) cannot simply mail the thing his/herself.

To do it right, the lawyer assembles everything, prints an airbill, and hands the unsealed FedEx envelope to the clerk.  The clerk inventories the documents, seals the envelope, and tosses the thing into the outbox for Joe to pick up.  (Joe is my FedEx guy.  And he’s pretty cool.  Aside: buy Joe a sandwich once in a while.  He’s earned it.)

Now, with some verbal gymnastics, you might be able to convince the court that 4(f)(2)(C)(ii) doesn’t apply to Hague service [I submit that it does apply], but that’s an expensive argument to make when your goal is to cheap out in the first place.  You might win, but the time spent briefing and arguing the thing will definitely eat the savings.

The Bottom Line

Don’t cheap out.  Don’t conclude that the easy way is the right way.  Even if you’re in S.D.N.Y. and you have the clerk send the thing (S.D.N.Y. has a dedicated person to handle this stuff—most other courts look at you like you have three heads), and even if it’s going to Canada or England or France, smart defense counsel might get your attempt quashed on a factual basis alone (again, prove it).

The better way, for you, for your client, and for justice, is to bear a bit more cost and use a more practical Hague method.

Related post on Due Process:
Civ Pro for 4L’s: the Mullane standard and service abroad

*I won’t detail the 5th/8th reasoning here—suffice to say that I disagree.  Why in the hell would mail even be in the Convention if it weren’t a valid method?  Perhaps this is why I don’t wear a robe for a living.  Still, I’m chomping at the bit to get this issue resolved, and I’ve already mapped out the brief while sitting here.  Nudge nudge… if you have a test case, I might just take up the appeal for free.  Know what I mean?  It may not matter, frankly… The Nine Eight Wise Souls might resolve the split this term in Water Splash v. Menon… see Ted Folkman’s ongoing coverage over at at Letters Blogatory for more.

** UPDATE, May 2017: The Nine Eight Wise Souls did indeed resolve the split, unanimously.  See my post on Water Splash here.

*** UPDATE, May, 2017:  This post originally indicated François Hollande as the President.  That changed on 5/14/17.

1965_Volkswagen_Beetle_(7486333448)
Image by Niels de Wit, via Wikimedia Commons.

Over the years, I’ve repeatedly had lawyer clients say to me, “I have to serve a defendant in (Country X), but I don’t want to do it through the Hague.  That’s just too much hassle.”

Ahem, sorry, I say to them.  You don’t have a choice in the matter.  But that doesn’t necessarily mean what you think it means.  We just need to define ‘the Hague’.

The bottom line is this: if you have to serve a defendant in a country that is party to the Hague Service Convention, you must observe the strictures of the treaty.  Period.

Why? Because this lady said so:

Source: National Archives.
Sandra Day O’Connor’s swearing in, 1981.  Image source: National Archives.

And eight of her friends backed her up in much of the reasoning.  But again, that doesn’t necessarily limit your options.  It all depends on the country.

First, recognize the mandatory & exclusive nature of the treaty.  Just so you don’t have to brief the case as if you’re in law school again, here’s the skinny on Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), the granddaddy case in overseas service.  Schlunk set forth two absolutes:

  1. If the Convention applies, it’s mandatory, so don’t try to get cute with the methodology, even if the judge says you have to do it his way (at 699).
  2. The methods articulated constitute an exhaustive list (at 706).  Full stop.  Service by drone is not listed, so forget it.*  Delivery by  Hogwarts owl?  Nope.  Stick to the treaty or don’t serve.**

Interestingly, the court held that in the specific facts of Schlunk the Hague Service Convention didn’t apply.  Illinois statute allowed for service on a foreign corporation by delivery to its Illinois subsidiary.  Schlunk sued Volkswagen in Illinois state court, and his counsel appropriately served VW via its U.S. subsidiary’s Chicago headquarters.  Done.

By its own terms, the Convention applies only if there is occasion to send documents abroad for service.  No need to send abroad if you can get them in Chicago.  [Congratulations to the Cubs, while I’m thinking about it.]

Still, the decision is seminal in Hague service by U.S. plaintiffs.  Justice O’Connor was awfully clear in her logic:  if the treaty applies, follow it, but it doesn’t apply here, so the case can proceed.  That being said, the treaty also sets out more than one method for serving, provided the destination state doesn’t object.  Many of them do, so you’re limited in Germany (including Volkswagen), China, and Korea.  You’re kinda-sorta limited in Japan.

But you can hire a process server in Saskatchewan.  Depending on your venue, you can mail service to France (more in a later post on why that’s a bad idea).  You can make a direct request to a gerechtsdeurwaarder if your defendant is a very tall Dutch fellow in Rotterdam.

What my lawyer-clients really meant in all those phone calls was that they didn’t want to have to fill out all the paperwork necessary for a request to a Hague Central Authority.  The hassle is often unavoidable, but in many cases, isn’t required.

 

*Hat tip to Ted Folkman for perfect timing of that post.

** We’ll get into email service in a later post.  It may have only existed in Al Gore’s mind in 1988, but it might just fly under Article 10(a) today.  Might.

[Originally published at vikinglaw.us]

You’re suing in your hometown.  Jurisdiction is clear.  You have everything you need to get the ball rolling.  There’s just one thing about it that differentiates it from the rest:  the defendant is overseas.  And that difference could mean a massive increase in the cost to litigate.  A good chunk of that increase is wrapped up in serving process.

For the most part, this isn’t a deal-breaker.  Serving abroad is not rocket science, frankly.  Given a few extra hours, any lawyer can figure out how to do it, but compared to Paris (Texas), Paris (France) is an entirely different breed of cat.  [Click here for the Secret Sauce recipe!]

Don’t use seven words when four will do.

— Rusty Ryan (Brad Pitt) to Linus Caldwell (Matt Damon), Ocean’s Eleven, 2001

The easiest way to keep costs down is to keep the pleadings as short and sweet as possible.  Translation often reflects the biggest share of the cost to serve abroad, so brief and succinct pleadings are the surest way to rein in costs.  Federal notice pleading all but mandates such brevity—truly, unless the complaint involves several different issues, a federal case is bound to be short (likewise in notice-pleading states) in order comply with the rules.  Fact-pleading states may be a different matter, but properly stating a claim does not require Tolstoy-esque storytelling.  It also does not require reams of exhibits that will necessarily have to be admitted into evidence later.

Brevity is key.  And often the toughest key for lawyers to sing in.

(For the record, the text above, including the Brad Pitt quote…  255 words.  It is excruciating to just leave it at that.)

Image:  Promotional material for Ocean’s Eleven (Warner Bros. Pictures, 2001).  Lifted here as an homage to one of my favorite movies.  It happens to be on Amazon Prime right now, and this was a really short blog, so go watch it.  Your cool factor will increase.

Kevlar

That’s Kevlar® on that kid’s head.  Technically, it’s called “a kevlar” (like your grandpa’s WW2 helmet was called “a steel”), but it’s made of Kevlar® (capital “K”) a little miracle fiber dreamed up by the gang at DuPont Chemical.  It has saved thousands of lives in its five decades on the planet.  Kevlar® is the stuff that makes helmets and bulletproof vests, well, bulletproof.  But any hard-charging operator will tell you that if you don’t wear it correctly, it’s not as bulletproof as you need it to be.

I wrote a few months ago that defense counsel should always question the validity of Hague service that has (ostensibly) been effected on their foreign client.  A request submitted to a foreign authority pursuant to Article 5 must be valid in the first place.  And many times, they’re not valid—even if the Central Authority receiving them doesn’t know it or doesn’t care (most of them never inquire).

Usually, a Hague Certificate is the functional equivalent of Kevlar®.  But if you don’t wear it correctly, it’s not as bulletproof as you need it to be.  A Hague Certificate predicated on an invalid Hague Request is itself tainted.   (Something about a “poisonous tree” tickles my memory from law school.  Yes, I know—that was the exclusionary rule.  This is different.  But it’s the same relative idea.)

How do I know this?  Well, a couple of years ago, I got a letter from the Ministry of Justice in Budapest, asking why I thought I was qualified to sign one of these things.  Those pesky Hungarians, what with their bowls of paprika-laden goodness and their stunning trios of starlets, demanded to know the source of my authority.

Why, the United States’ declarations to Article 3 of the Hague Service Convention, I responded by email:

The persons and entities within the United States competent to forward service requests pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court.

(Emphasis mine.)  Within 24 hours of my answer, I received a very collegial email from a fellow in the Ministry’s Department of Private International Law …  Thank you, kind sir.  We will proceed with your request forthwith.

But their query got me thinking…  do they actually get invalid requests, signed by people who aren’t authorized?

As it turns out, yes.  They do.  Regularly.

(Joe Bob is not a lawyer.)

Not long after my exchange with the Hungarians, a lawyer in Chicago emailed me to ask if the service that he’d had effected on a foreign defendant was valid.  I scratched my head, wondering why he was unsure, but when he sent me the paperwork, it dawned on me.  He had hired a process server who filled out a standard USM-94 and signed the request, citing FRCP 4(c)(2) as the basis for his authority.  Horns and alarm bells started going off in my head.

You see, 4(c)(2) has nothing to do with Hague Requests whatsoever.  It merely says that any adult non-party can serve process in a federal case.  But the act of signing a Hague Request and the act of serving process are not the same thing.  A foreign official actually serves process in response to a Hague Service Convention Request.  The Federal Rules of Civil Procedure don’t govern who actually serves process in foreign lands (nor do state rules, for that matter)—they require deference to the laws of those foreign lands.

I’m adamant that lawyers should outsource the procedures that reduce the efficiency of their practice, and serving abroad is just such a procedure.  But the outsourcing must be done advisedly, and that means ensuring that the Hague Request is signed by a licensed attorney or someone appointed by the court for just such a purpose.

Most professional process servers will refer out this kind of work.  But if your process server assures you that it’s not a problem for a non-lawyer to sign a USM-94, you’ll want to call your malpractice carrier before you engage the process server.   It’s a good idea to let them know in advance that you’re taking legal advice from a non-lawyer.

Photo credit:  United States Marine Corps, photo ID 120601-M-BM244-004, via Wikimedia Commons.  I’m pretty sure this kid is safer than any other human being on the planet… the Marines have his back.

This one is from DuPont’s own website, showing Kevlar® in its stock form.  Neat stuff…DuPont KevlarAS 450X

Letterbox in Cardiff (the capital of Wales).  Photo by the author, 2018.

[Update: The Water Splash decision alleviated most of the confusion in May, 2017.  The circuit split was resolved– decisively and correctly, in my view, but mail service still has to be valid under lex fori to be valid under Article 10(a) of the Hague Service Convention.  If mail is not permitted by state court rules, the Convention doesn’t magically make it so.]

Here’s an easy question:  can you serve by mail in (pick a country)?  I’ve fielded this one a hundred times.  The attorney asking has usually already decided that’s what he’s going to do and is just making sure.

Unfortunately, it’s not as easy as it seems.  With apologies to all of those who suffered through the crucible of law school and must now live its clichés…

depends

Generally speaking, yes, you can serve by mail in much of the world, but there are exceptions, both here and abroad.  And that doesn’t mean you should serve by mail.  It’s a bad idea, for more reasons than I have space here to discuss.

Article 10(a) of the Hague Service Convention seems pretty clear.  Sending a summons & complaint by mail (and by reasonable extension, FedEx) is acceptable under the

Convention, provided the country you’re sending to doesn’t object.  That means a clear “no” in:  Germany, China, India, Mexico, Switzerland, Russia, Korea…

The answer in Japan is “probably not” (long story).

Where the destination state doesn’t object (think England, France, Canada, and others), it’s still not a great idea.  You may be on a solid legal footing, but the factual ice your other foot rests on is awfully thin.  Put another way,  good luck proving it, pal.

But the destination country isn’t the only critical element of the analysis.  You must first determine whether mail service is valid in the forum hearing the case.

Local rules don’t allow it?  Sorry, 10(a) is not going to fly, regardless of the destination country’s views.

Federal rules do allow it, but be wary.  Overseas mail service originates with the Clerk of Court, rather than the attorney’s office.

Moreover, two circuits and numerous federal districts have held that a drafting error in Article 10(a) is fatal to its validity.  The 5th and 8th Circuits keyed on the drafters’ use of the word “send” rather than “serve”.  But rejoice, 2nd and 9th!  Your appeals courts think Five and Eight goofed. **

I happen to agree with Two and Nine, but I honestly think Five and Eight will overturn themselves when the right case comes along.  (Hint:  if you have a test case in either Circuit, let me take a crack at it.)

Truly, the legal validity of Hague mail service doesn’t matter.  It’s usually a waste of energy to try it in the first place because you often can’t demonstrate conclusively that the right person at the defendant’s home (or defendant entity’s office) actually received the documents.

Far better to ensure that service is effected in a manner that leaves no question of fact.*  Article 5 is awfully handy for that, as is Article 10(b)/10(c) where available.

 

*A note about mail service’s use by foreign Central Authorities under Article 5: if the foreign authority says it’s valid, it’s valid.  Period.  The U.S. court can’t dissect the foreign government’s reasoning on the matter, and should defer.  Earlier post on serving U.S. servicemembers abroad touch on that issue  here and here.  Bottom line: a foreign authority’s use of mail validates it under Article 5.  As such, Article 10(a) analysis is inapplicable, and the Supremacy Clause makes the treaty override local rules.

** Update… the test case happened.  See my post on Water Splash.

Image credit:  Chris Downer, via Wikimedia Commons.

[Originally published at vikinglaw.us]

Immigration attorneys seeking Special Immigrant Juvenile (SIJ) status for their clients must seek an order of guardianship in state court before an Immigration Court will confer SIJ classification.   In order to establish that guardianship, they (or co-counsel who practices family law) must put the child’s biological parent(s) on notice of the proceedings—and that implicates a host of procedural barriers.

In many states, parental rights are constitutional in nature—the best interests of the child take a back seat— and that doctrine isn’t going away.  Even where the best interests of the child are paramount, notice must still be served in order to vindicate an absent parent’s constitutional rights.

The constitutional standard applicable to the manner of service of process comes from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): notice by a “means reasonably calculated… to apprise” the defendant (respondent) of the action and to give him/her an opportunity to oppose it.

Where that defendant is outside the United States, the law of the foreign jurisdiction must also be respected.  In many countries, even in Latin America, that may implicate the Hague Service Convention—which is mandatory doctrine under Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

Application of the treaty complicates matters in serving guardianship notices, but even where it is not applicable, service may be impossible.  That does not, however, allow a court to simply deem a respondent served.  It also does not mean that mail or a fax or email or Facebook Messenger are appropriate.

Mexico is signatory to the HSC, and it has declared its opposition to all of the alternative methods of service listed in Article 10.  This leaves but one legally appropriate method of service: a formal request to the Ministry of Foreign Affairs in Mexico City.  This process takes several months—in many cases up to a year (no, that is not a typo).

In other Latin American countries, most notably Guatemala, Honduras, and El Salvador, service is all but impossible without extraordinary cost and risk.  But, again, that does not relieve counsel of the duty to take reasonable steps to serve.

And therein lies the key idea: reasonable steps.

Once we have accomplished a few steps, alternatives can be suggested to the court hearing the guardianship request:

  • A diligent attempt to ascertain the respondent’s location. If he’s in a village in the mountains with no address, we simply cannot reach him by traditional means.
  • If you have an address, try to serve. This is especially true in Mexico, where service is frequently effected, but usually after a lengthy wait.
  • If no address is available, there are other options, but every case is—like every jurisdiction—different.

In all cases, honest attempts at service must be initiated, lest the entire quest for SIJ status unravel.  Above all else… do it the right way.

 

[In a later post… we will discuss the Hague Adoption Convention, the State Department’s erroneous interpretation of it, and the way in which SIJ status overcomes the error.]

BigMac

This is the Secret (okay, technically “Special”) Sauce recipe for the vaunted Big Mac.  Really, the formula is not so secret, but replicating the sauce is not for the faint of heart.  And as much as Mom tried to copy it at home to save a few cents, it just couldn’t compare to the Golden Arches.

Yes, counsel, you really can handle service of process abroad by yourself.  All it takes is a few hours of research to pinpoint the applicable rules for serving wherever your defendant is located.  You can replicate it, but call in help instead, because it will save you quite a bit of headache, it will save your client quite a bit of money, and it could just save your case from dismissal due to preventable error.

The recipe for Hague Secret Sauce:

  • Step One:  Determine whether the foreign country is a member of the Hague Service Convention; you can find that out here.  If it is a Hague country, you have no choice but to adhere to the treaty’s strictures.
  • Step Two:  Read the Hague Service Convention itself.  Go on.
  • Step Three:  Look at the foreign country’s declarations regarding Article 10.  If they object, you have no choice but to avail yourself of Article 5, which is available everywhere, except in Russia.
  • Step Four:  If they don’t object, then you have to determine what constitutes a competent person under the foreign country’s law.  Its declarations will point you in the right direction—contact that competent person to arrange for service.
  • Step Five:  If you select mail service under Article 10(a), be sure that Hague mail service is acceptable in your jurisdiction.  [Be wary of FRCP 4(f)(2)(C)(ii), too.]
  • Step Six:  If you determine that Article 10 channels are unavailable, then determine the appropriate Central Authority to receive your request under Article 5.  (Germany and Switzerland are fun to discern.)
  • Step Seven:  Determine whether translation of the documents is necessary by consulting the foreign country’s declarations.  If it is not a former British colony, you will most likely have to translate.  And don’t forget the defendant’s right to due process—if they don’t speak English, you’ll have to translate anyway, even if they’re in Toronto or London.
  • Step Eight:  Have the documents translated by a trustworthy service.  [For the love of Adlai Stevenson, don’t use Google Translate, and don’t have your paralegal do it just because she spent a summer in Paris in college.  She is probably not qualified, and even if she is, her time is better spent on paralegal work anyway.]
  • Step Nine:  Fill out Form USM-94, either on your own or with a bit of help from the Hague Envoy platform, then compile the documents to be served (with their translations, as applicable) and send the request to the appropriate Central Authority.
  • Step Ten:  Wait.  In some cases, wait several months—or even a year—for a response from the foreign authority.  FRCP 4(m) gives you safe harbor from dismissal for time, as long as you aren’t dilatory.

To be sure, this series of steps assumes a perfect world, and it does not account for the particularities of each foreign jurisdiction contacted.

  • Hong Kong?  Part of China.  But it still functions under the old British system.  Then again, don’t put Hong Kong on an equal linguistic footing with the PRC.  Bad things happen if you name the jurisdiction carelessly.
  • Israel?  Allows you to hire an agent to serve, but only if that agent is specially appointed by the Jerusalem Directorate of Courts.
  • Canada?  Sure, you can find a process server in the Yellow Pages (the what?).  Except in Quebec, which is not a common law jurisdiction.
  • India?  Over 1.25 billion people.  And only one of them works in the Hague Central Authority.  Good luck.
  • Austria?  Not a Hague member.  And they’re sticklers for doing it their way.  (Seriously… don’t even think about tackling this one yourself.)    Update, 2020: yeah, they’re a Hague jurisdiction now, but they’re still sticklers!
  • Taiwan?  Not a Hague member either.  Not technically a state, in the eyes of the world.
  • Mexico?  Just… wow, the headaches that lie ahead.

That’s just to name a few.  This can be a labyrinth.

[Photo:  that is a Big Mac, the most glorious fast food item in history.  We, as a firm, are huge fans of the Big Mac, and encourage its purchase.  We hope that our endorsement will prevent a C&D letter from McDonald’s Corp. demanding that we take down the photo.  Although we would comply,  two all-beef patties, special sauce, lettuce, cheese…]

This post was originally published on Viking Advocates’ firm site.  It’s been modified slightly to remove the sales-pitchy stuff.

Update, November 30, 2016. Michael Delligatti, the man who brought you the Big Mac, has died. He was 98.

Serving U.S. Servicemembers Abroad, Seconda Parte (Part Two)— real world.

Sigonella Naval Hospital, U.S. Navy photo.

A war story, of sorts—told with the permission of my client, a highly regarded personal injury lawyer.  He is one of those guys all the newbie lawyers regard with awe (as do I) because he’s got mad skills in a courtroom.  He found himself in a bit of a quandary last year, and sought help from someone who knows.

He has a medical malpractice suit currently pending, in which a hospital and several doctors are named as defendants.  In the intervening time since the incidents giving rise to the suit, one of the physician defendants joined the United States Navy, and was stationed at Naval Air Station Sigonella in Sicily.

The Mediterranean coast of Sicily, off Catania. DoD photo.

  [Not a rough assignment.  Anyplace called the “Jewel of the Med” is a pretty good billet. —> ]

The client called me last summer to inquire about serving the Navy doctor.   An awfully tough goal, I told him, explaining the gist of my recent post “Serving U.S. Servicemembers Abroad”.

In a nutshell, if the G.I. lives on a military installation, you’re probably going to have to wait until they return stateside.  A number of rules collide to create a real Catch-22 in serving process… our military authorities either can’t or won’t serve process, and the servicemember’s quarters are off-limits to local authorities.  [Hat tip to Yossarian.]

As luck would have it, though, my client had what he thought was a regular address in Catania, the city between the naval base and beautiful, volcanic Mount Etna.  We hired an Italian investigator who was able to confirm that the address was indeed that of the defendant.  The Navy doc had done what I would do in such a situation… she rented an apartment “on the economy”, as the grown-ups used to refer to off-post housing when I was a brat overseas.

Living in civilian housing put her squarely under the jurisdiction of the local prosecutor, who had the responsibility of serving process pursuant to our request under the Hague Service Convention.  Within a few weeks, the Italians sent word that the defendant had been served because the prosecutor had mailed the documents to her apartment.  They returned proof of service for submission to the venue court, going so far as to cite the various sections of the Italian Civil Code that made it effective.  Defense counsel argued that the doctor had never actually received the summons, so the case against her ought to be dismissed for want of proper service.  Counsel asserted that the Hague Service Convention requires actual delivery to the defendant (it doesn’t), that Italian law requires actual delivery to the defendant (it doesn’t), and that the appropriate authority for the venue court to look to was the European Judicial Network (um… I had to look that one up, and no, it isn’t).

The Convention requires no such thing.  It requires only that the Central Authority of the destination state attest to the effectiveness of service according to its own laws, if indeed that service can be completed.  U.S. caselaw, moreover, cautions courts against analyzing matters of a foreign country’s law when the Central Authority certifies that a method of service is valid.  In short, leave interpretation of foreign countries’ laws to the foreign countries themselves.  [Imagine the howls of protest if an Italian court were to overturn the U.S. Central Authority’s certification of compliance with American law!]

Not only does Italian law require no such thing, but according to the documentation provided by Italian authorities, service by mail is specifically authorized.  Indeed, many civil law countries actually prefer service by mail or mere deposit in a defendant’s mailbox.  Things truly operate differently abroad.  The point is, Italy doesn’t require that the summons reach the defendant’s hands, as counsel argued to the court.  Even U.S. law requires only a reasonably calculated means of notice.

Most puzzling, though, was the contention that the European Judicial Network was a valid interpreter of Italian law, superior even to an Italian court.  The closest U.S. analog would be the Judicial Conference of the United States—but even that analogy falls short because the JCUS has actual statutory authority to set certain policy for the federal judiciary.  The EJN, conversely, is a flexible, informal, unofficial group of “contact points” established to facilitate judicial cooperation among members of the European Union.  Hardly an authoritative body.  [The real analogy here would arise if the JCUS were cited as an authority on Florida law, or New York law, or Colorado law.  Simply put, it lacks such power.  And so does the EJN as to Italian law.]

Cutting to the chase, the venue court agreed with us and denied the motion to dismiss.  Very tersely.

The takeaway: my client did it right.  He’s a master in front of a jury, and he’s been highly successful at vindicating the rights of tort victims.  The guy knows what he’s doing.  But he still called in some help when he saw the challenge in front of him.  Rather than spending the time and resources to serve an overseas defendant himself (and thereby save a few bucks on paper), he sought outside help—more cost-effective, accurate, expeditious help from someone who knows the intricacies of service abroad.

[Originally published at vikinglaw.us]

A little over a year ago, Ted Folkman posted in his fantastic column, Letters Blogatory, about a mistaken ruling in Kim v. Lakeside Adult Family Home (Wash. App. 2015).  When I read the opinion, I concluded that Ted’s description of a “mistake” was far too diplomatic.  The court’s opinion was so wildly wrong that it conflicted violently with the Hague Service Convention.  A bit hyperbolic perhaps, but I really did want to pull my hair out.

Last spring, I took it upon myself to submit an Amicus Brief (in Washington, an Amicus Memorandum) to the state Supreme Court, arguing that the opinion below allowed Washington litigants to contravene the letter, spirit, and underlying purpose of the Convention.   The Appeals Court had read into the Convention an idea that simply wasn’t there—namely, that under Article 19, a U.S. plaintiff could avail himself of a method of service in a foreign country despite that country’s objections to Article 10’s alternative methods, so long as the method was available to litigants in that country’s courts.

In Kim, the plaintiffs hired a private agent to personally serve a Norwegian defendant at her home.  Norway objects to Article 10, but the plaintiffs argued (without substantive citation to authority, as far as I can tell) that Norwegian law permits personal service by private agent.  This runs contrary to the usual practice in civil law jurisdictions, where service of process is a sovereign function carried out almost exclusively by judicial officers.  Setting that issue aside, however, even if private service is available in Norwegian cases, the plaintiff failed to show how such a method should apply to process sent from outside Norway.  Therein lay my objection to the Washington App. Ct. ruling—it was distressingly bad law because it set aside Norway’s Article 10 objections altogether and created a wholly inappropriate doctrine.

If the Supreme Court failed to correct the disastrous holding that the Appeals Court had issued, the only recourse would be to the U.S. Supreme—and the odds of getting there are always slim (and the Norwegian defendant was a nurse… not sufficiently wealthy to carry the issue all the way to the Nine Eight Wise Souls in D.C.).  I also feared that Wash. might decline to hear the matter because the plaintiffs cured their defect by serving the nurse properly via Norway’s Central Authority, rendering the Hague question moot.

Last week, reason prevailed (the opinion is linked from Ted’s follow-up column here).  The Washington Supreme overturned the lower ruling, holding that “ensuring proper service” is an “issue of continuing and substantial public interest,” so mootness wasn’t a problem.  Absent such a holding, the bad law would have remained.  More importantly, the Court also held that “the Hague Convention does not convert a country’s domestic laws on service of process into laws governing service of process of documents coming from abroad.”

Now, I wish they’d stop calling it simply “the Hague Convention”, and I’ve railed about that issue (see here and here).  Regardless, the Court wisely rejected the plaintiffs’ Article 19 argument and fixed a terrible horrible no good very bad mistake.

 

[Disclaimer:  I’m a plaintiffs’ guy at heart.  But my motivation on this one is to make sure that bad law gets torn down, and this one was really bad.  If you’re going to do it, do it right…]

Five

(… or, if you will, “How to not have to hire Viking Advocates when the contract sours.”)

Let’s get the disclaimers out of the way.  One, this advice is legal in nature, but it is not offered to a specific person.  It is general information meant to provide perspective, to highlight the vulnerabilities in a contract.

Two, it is not an exhaustive list, so if this is all you contemplate in a contract, you are headed for disaster.

Three, if you are a business owner who seeks to enter into a contract with a foreign party, you must (and I cannot stress this enough) HIRE A LAWYER.  This is not just a plea to protect my guild monopoly.  Yes, you’re as smart as any of us.  Yes, you have a wonderful product/service/company/etc. and you do wonderful things.  But you cannot foresee what your lawyer can.  Global commerce is no place for the faint of heart, and it is no place for self-representation.

These are vital issues your lawyer must contemplate before you sign a contract.  If s/he hasn’t thought of them, mention them.  If they tell you these issues aren’t important, run away as fast as you can, because your lawyer is dangerously ignorant of transnational litigation procedures (to be sure, just because your lawyer hasn’t mentioned them does not mean s/he hasn’t factored them into the equation).  These are not absolutes, but are factors that should unquestionably be mentioned.  [UPDATE:  Each of these headings is linked to a post that elaborates on the idea…]

  1. Designate an agent for service in the United States. All U.S. entities must designate an agent for service when they incorporate, organize, or register with their respective Secretary of State.  Foreign (that is, non-U.S.) entities often bear no such responsibility.  If a lawsuit becomes necessary, you probably won’t be able to just hire a process server in the foreign country. Your lawyer will need someone like me to handle it for you or, worse, will spend hours just researching how it’s done (and then bill you for that time).  With a U.S. agent, regular U.S. practice is perfectly fine.  (And to go one better, have the contract stipulate that the agent can be served by email!)
  1. Include a choice of venue. Even if that venue is overseas (and in many cases, it’s actually smarter to choose a foreign venue than a U.S. venue), agreeing on the appropriate place for a suit prevents a number of headaches—and can even prevent a dispute from arising in the first place.  Globally, this is referred to as a “choice of court clause” but has similar binding effect in most industrialized countries.
  1. Choose a governing law. Amazingly, the choice of what rules govern a dispute is left out of many contracts completely, with each party simply assuming that their own laws will apply.  That assumption is incredibly dangerous.  To be sure, the negotiated choice of law may not ultimately be the one you hope for, but as the old adage goes… forewarned is forearmed.
  1. Determine the operative language. Especially if the other party puts two versions of a proposed contract in front of you, make sure you select the operative language early on—and then revise that draft accordingly.  An entire civilization once gave over its territory because an ostensibly bilingual contract wasn’t really bilingual.
  1. Guard against having to enforce abroad by making the other party secure a guarantee of judgment debt from an American bank or other guarantor. Yes, it’s a pain in the neck.  Yes, it can drive up the cost of contracting and thus drive up the cost of the entire relationship.  But a judgment following a lawsuit is utterly worthless if it can’t be enforced.  If the foreign party’s assets are all in a country that won’t recognize and enforce a U.S. judgment, litigating the matter is a massive waste of time.
  1. Bonus Tip: add an arbitration clause. It serves the same purpose as a choice of court clause, and often designates specific rules and the governing law.  Thanks to the New York Arbitration Convention, arbitral awards are sometimes far easier to enforce abroad than litigated judgments and, despite their political unpopularity, provide significant cost savings in dispute resolution.

Again, your lawyer may have already pondered these issues, but they are still worth discussing.  Viking Advocates assists attorneys in the diligent drafting of global contracts, but the bulk of what we do results from contracts that are silent on these issues– especially #1.  Hiring us now for a consultation now means not having to hire us later to help wage a long and protracted litigation war.

Acknowledgment:  Particular thanks to Dan Harris of Harris Bricken in Seattle, who pens an outstanding blog on the legal ramifications of doing business in China.  Dan’s thoughts on litigating against Chinese opponents are extrapolated more generally here.