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[Originally published at vikinglaw.us]

Your client is a G.I.— a grunt, a leatherneck, a swabbie, or a flyboy.  While he was stationed overseas, he met a girl who he thought was the love of his life.  After a whirlwind romance, they got married, and she followed him stateside.

Eventually, things went south.  For whatever reason, marriages end every day, but for military families they are particularly heart-wrenching, especially when the non-military spouse is from another country.

When that foreign spouse leaves the U.S., the divorce process is decidedly more difficult because service of process isn’t quite as simple as hiring a server to hand her the documents.  Doctrines of international and foreign law must be observed.  Those doctrines vary wildly from country to country, so what is appropriate in England or Belgium might be expressly prohibited in Germany or Japan.

Family lawyers representing military clients must be meticulous about ensuring that service is effected properly—even if the court is unaware of the proper procedure—and just reading the applicable treaty or status or forces agreement is not enough.  The nightmare scenario if the procedure is not carried out correctly: the foreign spouse has a change of heart, returns to find her husband married again… and files an action to nullify his later marriage.  Far-fetched, of course, but possible.

(Where a spouse seeks to serve a U.S. servicemember stationed or deployed abroad, it gets even more complicated.  We elaborate here.)

 

Rosetta

U.S. court, U.S. plaintiff, U.S. law to be applied… everything about the case is American but one:  the defendant lives in Kaiserslautern.  Or Basel, or Xi’an, or Yokohama—pick an overseas city.  (Likewise if it’s a Canadian court, Canadian plaintiff, etc.)

When you serve a defendant in another country, you must observe the laws of that country, particularly where the Hague Service Convention applies.  Here’s why:

If the document is to be served under (Article 5), the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.”

— The Hague Service Convention, Article 5(3)

Note the key clause:  “The Central Authority may require…”.

They almost always do.  With very few exceptions, every Hague member that wasn’t once part of the British Commonwealth will mandate a translation from English into its own language for service pursuant to Article 5.  Switzerland and Belgium are even more picky, requiring translation into a particular tongue based on which city the defendant finds himself in.

Even if the Central Authority does not require it, like in Denmark or the Netherlands, the court officials and bureaucrats who handle the request down the line may have an affirmative duty to reject the request for lack of translation.

Best practice: eat the cost and do it anyway, because you will save your client a whole bunch of headache—not to mention money—as the case progresses.

The same advice applies to service under Article 10.  Although nothing in the Convention requires a translation for alternative methods, if the defendant is in a jurisdiction that wasn’t once a British colony, there is probably no such thing as a process server.  Service must be effected by a judicial official, so expect some sort of hiccup to set off a chain of events culminating in a dismissal.*

And even worse, don’t play around and use Google Translate just to save a few bucks.  I love the thing—the camera function in the Android App is really handy for translating gelato flavors in Rome.  But it is utterly horrible for legal documents.  Do it the right way, and hire someone with the expertise necessary to do it professionally.   [The same can be said for undertaking Hague Service requests on a Do-It-Yourself basis.  Just like that home improvement project you started a year ago—but had to call a plumber to finish—it will cost you and your client more in the long run.  Outsource it!]

* There are certainly exceptions to this, if you do it right.  Belgium and the Netherlands in particular.

[Originally published at vikinglaw.us]

A particular quirk arises in serving a defendant if he or she is a U.S. servicemember stationed abroad.  For the most part, I explain to clients that such an objective is a tough one, so they might have to simply wait until the defendant returns to the United States.   [This is not, as one might assume, due to the Servicemembers Civil Relief Act (formerly the Soldiers & Sailors Civil Relief Act, 50 U.S.C. §§ 3901-4043).  That statute stays proceedings, tolls statutes of limitation, and provides a host of other protections to uniformed defendants, but it does not address service of process.]

Defendants must, of course, be served according to the rules of the forum court.  But when a servicemember is stationed in another country, they can only be served within the strictures of applicable international agreements.   The Hague Service Convention is chief among the governing treaties, but no less important are individual Status of Forces Agreements (SOFAs), which govern access to U.S. installations by civilians and local authorities.

Herein lies the quandary, with several contradictory components.  Unless the defendant has a discernible civilian address (that is, not located on a U.S. installation), standard methods of service will be unavailable.

  • Hague service is not available without an address.  If a defendant lives in a barracks or other on-post* housing, then they simply don’t have an address.  Of course, “1234 Eisenhower Drive” or simply “Building 2375” may be valid for telling friends where to gather for a social engagement, but the addressing system is most likely unknown to local authorities (both civil authorities and the post office).  It has no legal effect, and can change by the simple act of a clerk.
  • Even if the defendant does have a discernible on-post address, mail is generally not delivered to such an address, and local judicial authorities would most likely be denied access to the post under the governing SOFA.  That said, I have had soldiers served where local officials coordinate with the post Provost Marshal to have the defendant meet the serving officer at the gate.  (Process servers, where they exist, are afforded very little accommodation by post security.)
  • Forget about serving them at the office, especially if “the office” is an artillery range.  Even if a local judicial officer does gain access, those officers generally avoid serving anybody at work.
  • The Posse Comitatus Act prohibits the use of Army and Air Force chains of command for civil purposes, and various Naval regulations likewise create insurmountable roadblocks.  Urban myth advises that a plaintiff simply needs to ask a JAG (Judge Advocate General) office to effect service but this simply isn’t accurate.

So what is a plaintiff to do?  Several options are available, although odds of success are lower than with service on a non-military defendant.

  1. Wait.  Simply hold onto the summons until the defendant returns from his tour of duty overseas, and serve him upon his arrival stateside.  Of course, the court must be made aware of the hurdles to proper notice, so an order excusing non-service may be issued to protect the plaintiff from dismissal.
  2. Request leave to serve via U.S. mail at his known APO or FPO (Army/Air Post Office or Fleet Post Office) address.**  APO/FPO addresses are not tied to geography like a street address is.  If a unit stationed in Germany is temporarily transferred to Kuwait, a soldier’s address may not change–or if it does, the APO staff in Germany will automatically forward his mail to the new address as a matter of course.  In short, the soldier will get his mail.
  3. Request leave to serve by electronic mail.**  All U.S. personnel are issued email addresses for official use, and they are generally permitted to use those addresses for personal communication while stationed abroad.  Moreover, given the ubiquity of free email servers, it is nonsensical for an active duty defendant to argue that he/she does not have a personal email account.  And like APO/FPO addresses, email addresses are tied to an individual, rather than to a physical location, so treaty considerations are less daunting.  (E-mail’s acceptance as a means of effective service is growing, slowly but surely.)
  4. If the defendant happens to live in civilian housing (“on the economy”) and his address can be ascertained, serve via traditional channels.  This may come in different forms, so significant brainstorming is necessary.

Serving a G.I. isn’t as easy as serving other defendants, but it may still be possible with creative thinking.

* The author is an Army brat.  An Army installation is referred to as a post, and it is painful to call it anything else.  Not a fort, not a base, and certainly not a campus.  With all respect to the Air Force, Navy, and Marine Corps, you’ll have to substitute your own terminology on this one.  Post, base, installation… you get the idea.

** Use of APO/FPO mail or of U.S. military e-mail servers may run afoul of the Posse Comitatus Act.  The issue has not been addressed in case law as of this writing.

[Originally published at vikinglaw.us]

Good old 12(b)(6).  The Rolling Stones Rule.  Failure to state a claim for which relief can be granted (I can’t get no Satisfaction).

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It’s the defense litigator’s go-to basis for dismissal.  Graceful, poignant, utterly classic.

Sure, the plaintiff was harmed.  Sure, the defendant caused it.  But there’s no law that says he’s liable for any wrongdoing.  Kick it, your honor.

When you get a 12(b)(6) dismissal, you’re a rock star.  You’re Mick Jagger.  Your client thinks you’re a genius and sends you a fruit basket with a bottle of Johnny Walker Blue and a $10,000 bonus check.  (That might be a stretch.)

But when a defendant is in another country, 12(b)(6)’s lesser known neighbors are more helpful.  And they should give pause to plaintiffs’ lawyers who don’t know what they’re doing.

Let’s say you’re in Germany.  You’re an engineer at German-Cars-R-Us, and your company was involved in some pretty nasty stuff—lying to regulators, lying to customers, lying to shareholders.  The story goes viral, and some guy in Kansas City who bought one of your cars six months ago now wants to sue you.  Individually.  Even though you didn’t have any involvement in the fraud, they’re throwing the book at everybody whose name was on a personnel list.

FedEx drops a packet on your desk (Hier unterschreiben, kumpel… sign here, pal).  The guy in the next cubicle speaks English and, mercifully, he translates page one for you.  Holy socks… it’s a summons to appear in a federal lawsuit in the Western District of Missouri.  They filed the thing a few weeks ago, and now you have 21 days to answer!

You find a lawyer in Kansas City (danke, Das Google) who gets to work on the case right away.  Fortunately, he speaks a little German, so you’re confident.  You send him twenty grand, and he files an answer to the complaint.  He litigates it, and you win.  But you’re out twenty grand.

Had he known about the law governing service of process abroad, he would have seen the simplest way to make the claim go away, and for a whole lot less than $20,000.

What would I have done?  I would have done nothing until the 91st day after the complaint was filed.  Then, I would have moved for dismissal under Rules 12(b)(4), 12(b)(5), and 4(m).

Why 12(b)(4)?  Because you don’t speak English.  It is rather difficult to understand a summons in English if you only speak German—and the plaintiff didn’t send a translation.  Your due process rights were ignored, so the process was insufficient.

Why 12(b)(5)?  Because the plaintiff’s lawyer completely ignored the Hague Service Convention.  Mail service (including FedEx) is ineffective in Germany, so service was insufficient.  For that matter, it’s ineffective in any Hague country if the case is being heard in the 8th Circuit.

Why 4(m)?  Because a plaintiff has 90 days to serve, or the claim has to be dismissed.  Now, that deadline doesn’t apply to service outside the United States, but the safety valve doesn’t give a plaintiff unlimited time—a reasonable diligence standard still applies.  If the plaintiff doesn’t even attempt proper service within the first 90 days, he’s out.

Bottom line—the plaintiff’s attorney was not only dilatory,* he also did it wrong.  So wrong, in fact, that the case against you should have been dismissed sua sponte.  Both sides have a malpractice claim against their lawyers, who should have come to one of my CLEs.

They could’ve been rock stars.

 

*Dilatory: unnecessarily pokey.  (I had to look it up, too.)

Image:  Pop-Art “Mick Jagger” by Silvia Klippert, via Wikimedia Commons (free license granted by the artist).

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The divide between the common law and the civil law tradition is the transnational attorney’s greatest conundrum, greatest source of consternation, even the greatest inhibitor to fair & equitable dispute resolution in global commerce. And it is not going away. As such, at least a basic understanding of the differences is critical. Call this the super-simplified Cliff’s Notes version of Comparative Law, if you didn’t have the chance to take the course in law school.

Common Law

American lawyers, along with our fellows in England and her former colonies, are trained almost exclusively in the common law. In this august tradition, legal concepts evolve over time through a succession of judicial opinions. Of course, legislative action is ostensibly the basis for legal interpretation, but the very broad areas of contract, property, and tort arose primarily from centuries of court-issued holdings.* Statutes, in large measure, serve to codify or modify concepts established through the evolution of English jurisprudence—if not via binding precedent, then through easy-to-adopt persuasive precedent handed down by sister courts in other jurisdictions. Even where legislative acts provide the basis for a legal concept, courts themselves interpret statutes according to their own rules of construction.

Civil Law

Conversely, our counterparts in the non-English-speaking world operate in the civil law tradition, based on the Napoleonic Code. In this system, labyrinthine statutory language covers every manner of legal concept from marriage and inheritance to faulty wiring and landlord-tenant relations. Code language is interpreted not by judges themselves, but by legal scholars—literally law professors who are consulted by courts for guidance in determining the meaning of statutory text.

To be sure, “civil law” in this context should not be confused with the concept of civil actions in the U.S.  The Napoleonic system operates in both criminal law and that which we would term “civil” litigation.

Although differences between the systems are many, the greatest single contrast, and the one that most vexes American lawyers—is that between the common law’s adversarial tradition and the inquisitorial system of civil law. In the common law, attorneys investigate, interrogate, and argue facts. In the civil law, inquiry lies within the purview of the judge.

Because of this dramatic difference in the respective roles of attorneys and judges, we have a hard time understanding each other, and frustration abounds, especially when a common law (read: American) attorney seeks to serve process or compel foreign evidence.

Service of Process Abroad

When a common law lawyer seeks to serve process, all she needs to do is hire a process server—a private agent who specializes in the matter. It’s quick, it’s inexpensive, and it’s straightforward.

In civil law systems, though, service of process is a sovereign function of the court, and must be carried out by a judicial officer akin to a bailiff or sheriff’s deputy. In some countries, notably China, delivery of a summons by a private agent is a criminal offense, a usurpation of the court’s authority.

As such, American litigants cannot simply hire a detective in Berlin or Beijing to serve documents. Even in France or the Netherlands, which are slightly more permissive, U.S. litigants must still have personal service effected by the judicial officer.  This should not cause alarm, however, as most U.S. procedural rules allow a plaintiff reasonable time to utilize foreign mechanisms.

Evidence Compulsion

Simply put, attorneys in civil law jurisdictions don’t ask questions—they make legal arguments before the court—and it is up to the judge to inquire about facts. Accordingly, foreign judges often view American discovery requests not only as overly-intrusive, but also as a usurpation of their authority.

Common law judges and lawyers, conversely, feel stymied by the refusal of civil law courts to compel the production of evidence deemed crucial by litigants.

Fortunately, an understanding can be established through very careful crafting of requests to foreign authorities, but it must be done with complete recognition of what drives foreign law.

Ultimately, the civil and common traditions are really two pathways to the same destination, or at least, two means of striving for the same goal. The most glaring differences are procedural in nature. Once they are understood and accommodated, disputes can be resolved with less headache and heartache.

*In the 1970s, Schoolhouse Rock was a great starting point for civics education. But it failed to provide a full picture of the sources of law– the title of the most memorable was “How a Bill Becomes a Law.”  It was not “This Is the Only Way Laws Happen”. Sadly, the cartoon that made me want a life in politics is the same cartoon that has obliterated basic civics in America. What was then a starting point is today considered the final exam.

Image: The Old Bailey, London, courtesy geograph.org.uk, via Wikimedia Commons.

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Here’s another distinction that only a lawyer could love.  Oddly enough, I only hear lawyers (and other professionals in the legal industry) use the erroneous terminology “through the Hague.”  Laypersons really have no need.

Not to be pedantic,* but our industry lives and dies by the sword of precise language, so let this hone your blades, my dear colleagues.

You don’t serve process “through the Hague.”  The documents don’t pass down a corridor in a clearinghouse somewhere between Rotterdam and the North Sea coast.  Make no mistake—the Permanent Bureau of the Hague Conference on Private International Law is staffed with some of the finest legal minds in the Solar System, but its job is to coordinate relations between member nations and to manage the execution of some three dozen agreements known as  Hague Conventions.  It is not to shuffle service of process paperwork.

We don’t need a stamp of approval from the Dutch Foreign Ministry to send a service request to China or Argentina.  The Dutch Foreign Ministry (technically, the Ministry of Foreign Affairs of the Kingdom of the Netherlands) acts as the repository for the Hague Conventions (among other treaties), but its involvement is rather limited to accepting instruments of ratification from nations who agree to be bound by a Convention’s terms.

And you don’t serve “through” or “by way of” a particular article.  You might serve pursuant to Article 10(b), or you might submit an Article 5 Request.  Through and by way of… are simply the wrong prepositions.  Under?  Sure.  Not through.

All that said, if you ever get a chance to visit the Netherlands, don’t just go through the Hague.  Stop and spend a bit of time there, because it really is a beautiful and charming city, especially around the Hofvijver and around the Peace Palace.IMG_20161110_113500

I visited the Hague as a kid and finally got to return last November.  Don’t go through the Hague… go TO the Hague.

You’ll have to go through Rotterdam to get there.

 

* You can almost hear my wife saying, “um, sure, Lukken.  You’re neeeeever pedantic.”

Viking Advocates is a consulting law firm.  That is, all of our clients are lawyers—we do not engage litigants directly unless they are in the immediate Kansas City area or elsewhere in Missouri.  We advise attorneys on the overseas elements of client relationships—in transactional work and in litigation. Viking’s worldwide network of agents and attorneys …