There is no such thing as a service of process emergency.

There is no such thing as a service of process emergency.

No, really. There is truly no such thing.

There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue. There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt. Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.

Tried & true concepts in litigation are changing at extraordinary speed (a platitude, to be sure), and litigation involving foreign parties and witnesses is becoming a major challenge for attorneys and courts in every jurisdiction.

Fortunately, rules in most courts provide ample time for service, especially Federal Rule 4(m), which specifically abrogates a hard 90-day deadline for service where the defendant is outside the United States. As long as counsel isn’t dilatory (I had to look that one up), the spirit of the deadline is honored once a request for assistance is handed off to a foreign authority. At that point, a lawyer can only wait for the authority to accommodate the request. [NB: Most states reach similar conclusions by either procedural rule or case law. Wisconsin and Michigan are the lone holdouts, and even they may offer some safe harbor to litigants.]

Critical in this analysis is the mandatory and exclusive nature of the Hague Service Convention. In Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor wrote for a unanimous court that, where the Convention applies, its strictures must be followed. The channels set forth by the Convention mean vastly different things in the various countries where it applies, and for the most part, this means the U.S. court hearing a case must usually wait patiently for service to be effected. Simply put, our rules do not apply elsewhere.

Effective service abroad serve usually cannot be timed with a clock… several pages of a calendar comprise the better measuring device.* In some cases, service can take over a year to be proved up.

Yet 4(m)’s safe harbor does not give an attorney unlimited time. The dilatory among us face sure dismissal, and it takes a long time to reach that level.

* Exceptions to this: parts of Canada, Australia, and England, where Article 10 negates the need for government channels to have a defendant served. In rare cases, process can be served within a matter of hours, and proved within days. But don’t bet the farm on this possibility. Ever.

Image: “10 O’Clock On A Sunny Summerday”, Robin Heymans, via Wikimedia Commons. (For the record, Big Ben is the bell inside the tower. The former St. Stephen’s Tower has been renamed Elizabeth Tower.)

About time, Czech Republ… er, Czechia.

About time, Czech Republ… er, Czechia.

An interesting BuzzFeed article popped up on my radar this morning thanks to the HuffPost morning e-blast (I love how media sites share each other’s stuff… if only they’d start sharing mine!)…

The Czech Republic Stopped Being A Thing While You Weren’t Paying Attention

Well, good. I’ve wondered for two decades why they didn’t just do that in the first place. Still, a rose by any other name…

Point is, Czechia is still a member of NATO, still a member of the EU (for now?), and still a member of the Hague Service Convention. It still objects to alternative methods of service under Article 10, it still requires translation, and it’s still pretty quick about getting the job done when we request service of process on a Czech defendant.

Now, if I can just find the time to get over there to see Prague! (And maybe advise our embassy about the change.)

Photo: Prague Castle and the Charles Bridge, Frank Spakowski, courtesy Wikimedia Commons.

Phone on Fire? Serve Samsung the right way.

Phone on Fire? Serve Samsung the right way.

They literally catch fire. Literally. Not in a “using the word ‘literally’ to make a hyperbolic argument sound stronger than it is” sense. The things emit flame, without warning and seemingly without reason. The Samsung Galaxy Note 7 has become the new poster-child for defective products. As if designed by Irwin Mainway himself (he of Johnny Space Commander fame). See The Guardian’s latest (as of this writing, October 19, 2016) story here. And USA Today’s bit about the Note 7 flight ban. And the NYT’s take on how the thing plays out in China. The company has rolled out a worldwide recall of the entire Note 7 line, but that doesn’t help the thousands of buyers whose handsets have already injured them.

Lawsuits have already begun, but Samsung is a highly sophisticated defendant. If the company is not properly served—at its headquarters—then a suit has zero chance of progressing past the complaint stage. Yet Service of process in Korea is not as daunting as it might seem. It does require accuracy in drafting and, despite the obvious competence of this particular defendant in English, translation into Korean is required. [Help is available to the practitioner who does not wish to spend ten hours getting up to speed on the procedure.]

The Republic of Korea (ROK) is party to the Hague Service Convention, the strictures of which are mandatory in U.S. and Canadian law (the Note 7 catches fire in Canada too). While the text of the treaty itself sets forth several methods for service of process, only one method is acceptable to all countries who have enacted the agreement. Article 5 service entails a request to a Central Authority in the “destination state”, and is available universally.* Article 10 sets out additional methods of service, provided that (1) the method used is acceptable under forum court rules, and (2) the destination state does not object.

In the case of Korea, alternatives are off the table completely. Yes, FRCP 4(f)(2)(C)(ii) allows service by mail. Many states likewise allow service by mail—some judges even require it regardless of Hague status. Usual practice in common law jurisdictions calls for service by private agent.

But the Korean declarations to the Convention are explicit—the ROK objects to Article 10 entirely. Mail is off the table for foreign litigants, and private process servers don’t even exist in civil law countries.

So you intend to sue Samsung because a Note 7 spontaneously combusted in your client’s hand? Serve Samsung properly. [And also be sure to go after the source manufacturer of the batteries… they might be somewhere else entirely.]

*Note that Russia is an outlier in this analysis… see here for more detail.

No Fishing: The reality of the Hague Evidence Convention

No Fishing: The reality of the Hague Evidence Convention

Of the three dozen or so Hague Conventions (specify which one you mean, counsel!), the United States is party to only a few. Among the most productive and useful are the Service and Apostille Conventions. And although it is helpful, the Hague Evidence Convention is not the great and wonderful device that American lawyers might hope for.

From a U.S. perspective, the HEC does little more than knock down a few procedural barriers—most importantly, it negates the need to convey a Letter Rogatory through diplomatic channels, which saves significant time and a $2,275 State Department handling fee. A Hague Evidence Request is still, for all intents and purposes, a Letter Rogatory. By no coincidence, it is officially and synonymously titled a “Letter of Request”. It is still a communication from judge to judge, it still relies on comity alone, it must still be surgically specific in detailing the evidence sought, and it must still demonstrate precisely how the evidence will be used at trial.

In short, no fishing.

Why? Because of Article 23, which is, for lack of a better analogy, a big, ugly middle finger directed at U.S. litigators. It was hastily drafted on the back of a bar napkin as the Convention seemed doomed to failure. U.S. negotiators recognized that American-style discovery (in the 1960s, a mere shell of today’s fishing industry) was poisonous to the Convention’s chances, so they conceded to the inclusion of the following:

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

Put more clearly: this treaty doesn’t oblige a member country to fulfill an American discovery request if they don’t want to.*

Accordingly, requests filed pursuant to the HEC must not bear the hallmarks of a discovery demand. Standard subpoena language—particularly the phrase “any and all”—is damaging, and potentially fatal. Careful drafting and the involvement of foreign counsel are critical (yes, we can provide both).

*Although the idea rises from the difference between common and civil law procedures for compelling evidence (in civil systems, judges—not lawyers—demand the production of evidence), even other common law countries have embraced the idea. It truly is directed at the United States, but the targeting is masked by the moniker “Common Law countries.”

Image courtesy of “Bidgee”, via Wikimedia Commons. https://commons.wikimedia.org/wiki/File:No_Fishing_Allowed_(Wollundry_Lagoon).jpg

Holding down the cost of serving abroad

Holding down the cost of serving abroad

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.

That Hague Service Request isn’t as solid as you think.

That Hague Service Request isn’t as solid as you think.

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.

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…

Mail and the Hague Service Convention… a match made in confusion.

Mail and the Hague Service Convention… a match made in confusion.

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, it 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 5^th and 8^th Circuits keyed on the drafters’ use of the word “send” rather than “serve”. But rejoice, 2^nd and 9^th! 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.

Image credit: Chris Downer, via Wikimedia Commons. The oldest letter box in England. Note the “V R”, indicating Queen Victoria, who died when William McKinley was President. (William McKinley also died when William McKinley was President.)

Serving Absent Parents Outside the United States

Serving Absent Parents Outside the United States

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 AG 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. [Shameless plug: Not only does Viking Advocates provide assistance in serving process, we also help counsel to demonstrate why traditional attempts to serve would be unreasonable—due to cost, lack of information, or extreme risk.]

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.]

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

My newsfeed has been jam-packed with Brexit stories since England & Wales voted to quit the European Union (for the record, Scotland and Northern Ireland voted overwhelmingly to remain—and this will have additional effects on the state of the UK). On the morning of the result, I gave a CLE lecture that was co-opted quite a bit by the news. Personally, I was stunned, and my befuddlement was heightened by the many voters who offered that “I just voted Leave to shake things up… I didn’t think we’d actually do it!”

(Aside: this is what happens when dubious soundbytes—and flat-out falsehoods—appeal to an angry and frustrated electorate. Take heed, America… November is coming. Additional aside: don’t be too hasty to conclude that Brexit will actually come to pass. That is a good thing. If it does, Scoxit is next.)

Lest we Yanks think the result creates problems only on the other side of the Atlantic… think again. Within hours of the vote, the Pound plummeted to a three-decade low (the Euro fell also, but not precipitously), and that makes American goods and services more expensive abroad. Logically, the US manufacturing sector will take a hit as commerce slumps with the world’s largest trading bloc. True, it makes travel across the Atlantic highly attractive, but it stymies our already tepid economic recovery.

What of litigation, though? How will the Brexit affect service of process in the United Kingdom? Or on the continent, for that matter? How will it affect the compulsion of evidence in foreign jurisdictions?

Short answer: it won’t, except perhaps to make agent services in Europe and the UK less costly to American litigants.

The long answer really isn’t long, except to say that service of process and evidence compulsion are very country-specific issues, and those issues have little or nothing to do with the European Union. As to procedural issues in American lawsuits, Brexit will have negligible effect.

(Image by Rlevente, via Wikimedia Commons.)

Electronic Service of Process Abroad

Electronic Service of Process Abroad

A debate is simmering in the service of process community, and should come to a rolling boil in the next several years: whether process can be legally served by electronic means. Frankly, it ought to be—not just because it is so simple—but because it fulfills the constitutional standard much more effectively than other less practical means.

That standard? In Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Supreme Court held that service of process must be effected by a means reasonably expected to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges.

Traditionally, service by publication has been used to “put the whole world on notice” of a claim where a defendant could not be located. For many years after Mullane, publication was really a plaintiff’s last (remotely) reasonable resort. Absent finding an address by dumb luck or just happening to catch a defendant on the street, not many options were left.

In reality, the method is not reasonably calculated to do anything but increase publishers’ revenue. Its effectiveness is a gross legal fiction. [Honestly, how many people read legal notices in the paper anymore, if ever? For that matter, how many people read “the paper” anymore?]

Nowadays, though, email and social media platforms have become all but ubiquitous. No business can expect to remain a going concern if it lacks an internet presence. And only the most impoverished individuals—aside from militant Luddites and the very aged—lack an email address. Yet the lion’s share of courts still reject electronic service, opting to mandate more traditional methods: personal delivery by a process server, registered mail (ahem, good luck with that), and the all-but-useless publication.

Some states are slowly coming on board and allowing e-service to registered agents or to evasive defendants. The real progress in case law is at the federal level, especially as to defendants located abroad. The Federal Rules of Civil Procedure take particular care to codify the Mullane standard in Rule 4(f), which governs service on defendants located outside the United States, and 4(f)(3) specifically has been held to render “other means not prohibited by international agreement” just as valid as service effected by more traditional means. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007, 1015 (9th Cir., 2002).

By its own terms (Article 1, right up front), the Hague Service Convention is specifically inapplicable where a defendant’s address is unknown, and the Inter-American Convention on Letters Rogatory & Additional Protocol is not a treaty whose effect is mandatory (these are the only two treaties on service to which the U.S. is signatory). If the defendant is known to be abroad, but his/her/its address cannot be ascertained, email cannot then be prohibited by international agreement. Accordingly, courts have wide latitude to authorize service by email, especially where the plaintiff has diligently searched for the foreign defendants. [For a thorough analysis of such a case, see D. Light Design, Inc. v. Boxin Solar Co., Ltd., unreported, No. C-13-5988 EMC (N.D. Cal., 2015).]

Look for the validity of email service to grow, especially where it becomes considered a Postal Channel under Hague Article 10(a)… more on that at a later date. For now, a couple of practice tips…

Practice Tip #1: This idea can be awfully handy with Russian defendants… the Hague Service Convention is ineffective with Russia, so request leave of court and click send.
Practice Tip #2: When drafting a contract with a foreign party, don’t just designate an agent for service here in the United States… designate an agent and stipulate that they can be served electronically!

Image: Courtesy www.elbpresse.de via Wikimedia Commons.