Catch Me If You Can: How To Serve Foreign Defendants

by Nossaman LLP

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

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.


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


[3] See

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.

© Nossaman LLP | Attorney Advertising

Written by:

Nossaman LLP

Nossaman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.