Catch Me If You Can: How To Serve Foreign Defendants

by Nossaman LLP
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You are sitting at your desk when your client calls to tell you that his or her customer breached an agreement. As you do your intake, you ask where the customer resides. You learn that the customer (potential defendant) has recently moved to "Country X." Suddenly, what first appeared to be a simple breach of contract case has become a venture into the exotic world of international service of process and jurisdiction.

Service of process on a party residing in a foreign country can be a daunting task for U.S. clients and attorneys without significant reasons. What does a plaintiff do when the defendant resides abroad? In these foreign party cases, ideally, the foreign defendant will agree to accept service of process and submit to the U.S. court's jurisdiction. Many times, the party will not voluntarily submit to jurisdiction. In these circumstances, service is more complex.

The Hague Convention's intention is to "provide a simpler way to serve process abroad." St. Ventures LLC v. KBA Assets and Aquisitions LLC (E.D. Cal. 2013); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). Many treatises suggest using the Hague Convention on Service Abroad of Judicial and Extra Judicial Documents ("Hague Convention") to effectuate service. However, what does this process mean from a practical perspective and what are the mechanics behind this process?

Do I Need to Use the Hague Convention?

Not every plaintiff needs to use the Hague Convention to serve their defendant abroad. In federal court in the United States (such as the district court and bankruptcy court), a party may be served by any means reasonably calculated to give notice to the defendant. Fed R. Civ. Proc. 4(f)(1); Tracfone Wireless Inc. v. Bitton, 278 F.R.D. 687, 690–692 (S.D. Fl 2012). The Federal Rules of Civil Procedure state that the plaintiff should use an internationally agreed means if possible, citing the Hague Convention as an example of acceptable service.

But what does a plaintiff do if there is no such internationally agreed means of service of process, or if the country's agreement allows (but does not specify) another means?

A plaintiff has a few options:

Foreign Law. A plaintiff can serve a defendant who resides in a foreign country in the manner in which that country provides for service of process in its courts. Learning the forms of service which are permitted under that country's laws typically requires hiring local, foreign counsel with expertise in that country. However, sometimes, foreign countries have laws which expressly prohibit foreign service of judicial documents through their typical system.

Letters Rogatory. Also referred to as a "letter of request," a letter or letters rogatory is a request by a foreign court (in this case, the U.S. court) for judicial assistance. The U.S. court directs, typically by order and written request, that the foreign authority act in response to the letter rogatory. However, the U.S. State Department advises against letters rogatory as being time-consuming and cumbersome, noting that habitual time delays of up to a year or more in execution of the requests are common.[1]

Personal Service. Unless prohibited by foreign law, personal service of the summons and complaint, or by mail with receipt signature required is considered an acceptable form of service for judicial documents, including process. Fed. R. Civ. Proc. 4(f)(2).

Other Means. Federal Rules of Civil Procedure, Rule 4(f)(3) also allows for service by "other means," as ordered by a U.S. court, if not prohibited by an international agreement. One possible example could be a situation where a U.S. court orders service by publication due to the inability to locate a defendant abroad. Service by publication is not advisable as it may not be considered a valid method of service under the laws of the foreign country. A party may have difficulty in the eventual enforcement of the U.S. judgment in that country. It is advisable to consult with foreign counsel on service by publication before utilizing such a method of service.

It is important to note that if the foreign party is served outside of the Hague Convention, it is advisable to consult a foreign attorney on the manner of service, even if that manner is allowed under the applicable U.S. federal rules. Some countries prohibit certain types of service as illegal. In addition, a party may have difficulty in the eventual enforcement of the U.S. judgment in that country if the service of process was not recognized under the laws of that country.

When the Country is a Participant to the Hague Convention

Many times, the foreign country where the defendant resides is a signatory (participant) to the Hague Convention. Certain countries require that the defendant must be served through the Hague Convention. Other Hague Convention countries allow service under the Hague Convention, but also permit service outside its requirements. In these cases, a U.S. plaintiff can serve a complaint in the same manner permitted by the foreign country, or by personal service.

Foreign countries that are signatories to the Hague Convention are listed on the Hague Conference on Private International Law website.[2] In addition, the U.S. State Department website also contains service information for most countries.[3]

In the case where only service under the Hague Convention is permitted, some courts have found that service outside the Hague Convention is void, even if in compliance with the Federal Rules. SignalQuest Inc. v. Tien–Ming Chou, 284 F.R.D. 45, 50 (D. N.H. 2012) (finding service under Rule 4(f)(2)(c)(ii) is permitted "unless the law of the foreign country in which the defendant is located expressly proscribes service by the means specified therein"); Shenouda v. Mehanna, 203 F.R.D. 166 (D.N.J. 2001) (holding that service outside the Hague Convention is void).

However, courts recognize that if the Hague Convention procedures are "unavailable to a plaintiff, such as when a signatory state is ‘dilatory or refuse[s] to cooperate for substantive reasons,' court-directed service under Rule 4(f)(3) may be available." RSM Production Corp. v. Fridman (S.D.N.Y. 2007) (citing the advisory committee notes to the 1993 amendment to Rule 4(f)(1)). Other courts have found that service outside the Hague Convention procedures using the Central Authority still complies with the Hague Convention. Balcom v. Hiller, 46 Cal. App. 4th 1758, 1765 (1996). It is important to check the relevant law in the specific jurisdiction involved when serving outside the Hague Convention.

Nuts and Bolts of the Procedure Under the Hague Convention

Once you have decided to go forward with service under the Hague Convention, the service must be made by sending a request for service to the "Central Authority" in that foreign country. Pursuant to the Hague Convention, Article 3-7, each signatory to the Hague Convention has appointed a Central Authority or department to handle delivery of requests for service.

The Hague Convention requires that its form "USM-94" be executed by the U.S. court, in duplicate, with the official seal of the court. Id.; see http://www.usmarshals.gov/forms/usm94.pdf.

In order to obtain an executed USM-94 form from the federal court, a plaintiff must file a Motion for Issuance of Request for Service Abroad. Note that certain countries do not recognize the signature of an attorney or the judge as the official seal of the court (e.g. Israel). It is advisable to consult your foreign counsel on these requirements. Many requirements, like these, are found on the U.S. Department of Justice website for the specific country. In those cases, it is important to request that the judge obtain the signature and seal of the Clerk of Court.

Depending on your court, the court will either return the USM-94 forms to you to deliver to the country's Central Authority, or the court will send the USM-94 forms directly to that country's Central Authority. If the forms are to be returned to you, you will need to coordinate with the judge's chambers to obtain the executed forms. It is advisable to specify your preference in your request to the court.

When is Service Effected Under the Hague Convention?

The final stage of service is determining when service on your foreign-located defendant is considered effected on the defendant. Article 5(1)(2) of the Hague Convention describes when service is considered complete: "Service is effected either by registered post with a certificate of receipt of service or personally delivered by the clerks of the various Magistrate's courts." If the defendant to be served is not at the given address, as set forth on the USM-94 form, "the documents can be accepted by a member of the family who lives at the same address and appears to be at least 18 years old." Id. After the clerk's third visit to an address where no answer has been obtained, "the clerk can post the document on the door of the intended recipient — and in this case this is regarded as legal service of the documents." Id. It is advisable to have local foreign counsel available to help facilitate service and follow up with the Central Authority.

Conclusion

If you are contemplating service of process to a party located in a foreign country, the first course of action should be to consult counsel, including local foreign counsel, regarding the laws and specific mechanisms available in the specific foreign country. If unable to serve the party under the laws of the foreign country, counsel should consult the Hague Convention to determine if the specific country is a signatory to the Convention. Although the process is technical, if done accurately and under the guidance of experienced counsel, a party can obtain successful results in effecting service of process in a foreign country.

[1] See http://travel.state.gov/law/judicial/judicial_680.html.

[2] http://www.hcch.net/index_en.php?act=states.listing.

[3] See http://travel.state.gov/law/judicial/judicial_2510.html.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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