written by NITA guest bloggers Tereza Horáková and Michael J. Dale
Over the last couple of decades, international commerce has experienced a dramatic boom. Such an environment quite naturally provides fertile ground for transnational litigation. For example, suppose that an American owner of a chain of sports bars visits the hidden gem of Central Europe, the Czech Republic. Stunned by the delicious taste of the local “liquid gold,” she enters into a long-term contract for shipments of Czech beer, with the intent to sell the beer in her sports bars. Regretfully, the Czech contractor, albeit experienced in the beer export trade, turns out to be an unreliable partner more interested in tasting his product than conducting business. After the American owner wires the agreed payment, the shipment of beer never arrives. The American sports bars owner decides to initiate litigation in the U.S. court against the contractor, who resides in the Czech Republic.
Leaving aside the questions of subject matter jurisdiction and personal jurisdiction, one of the first crucial issues she must resolve is the question of how to serve process on the foreign defendant outside the United States. The term service of process, of course, refers to the requirement to duly notify the defendant of the initiated litigation with a copy of the complaint (or its equivalent) filed by the plaintiff and a summons issued by the court clerk commanding the defendant’s appearance. In fact, proper service of process in compliance with constitutional and statutory requirements is a necessary prerequisite to establish jurisdiction. Only with proper service may the court be sure that the defendant has been made aware of the claims against it, and of the need to answer those charges in order to avoid entry of a default judgment. Accordingly, all plaintiffs must at one point or another deal with the issue of service of process.
A key question that this blog post discusses is, how do you do that? This post provides a basic overview of the most utilized methods of service of process on defendants outside the U.S. In turn, it analyzes the main issues related to each of the described methods in federal and state proceedings.
The rules governing service of process in federal proceedings are found in Rule 4(f) of the Federal Rules of Civil Procedure. By a cross-reference, the framework set out in Rule 4(f) applies to both natural persons and legal entities.
The primary method of service is by any internationally agreed means of service reasonably calculated to give notice, such as that authorized by the Hague Convention on the Service of Judicial and Extrajudicial Documents. In case there is no internationally agreed means, the process is to be served by a method that is reasonably calculated to give notice, such as in a manner prescribed by the law of the foreign country where the service is to be executed, or as directed by the respective foreign authority in response to a letter rogatory, or by personal delivery or by mail requiring a signed receipt, provided that such ways are not prohibited by the foreign country’s law. Lastly, Rule 4(f) allows any other means ordered by the U.S. courts which are not prohibited by international agreements.
Internationally Agreed Upon Means of Service
The internationally agreed means include two important multilateral treaties, the Hague Convention and the Inter-American Convention. As ratified international treaties, the Supremacy Clause grants them the status of the supreme law of the land. Whether the respective international treaty automatically preempts all other methods of service must be determined on a case-by-case basis based on the language of the treaty.
The Hague Convention
Possibly the most important platform for service abroad is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Convention). Its popularity may be attributed to its efficiency, with 66 percent of the requests being executed within two months (hereinafter Outline). As of December 2015, there were sixty-nine signatories including the U.S. and the Czech Republic.
For the Hague Convention to be applicable, the document to be transmitted from one signatory state to another must relate to a civil or commercial matter and the address for the recipient of the service must be known. U.S. courts have interpreted the language in the Hague Convention as exclusive. Therefore, if all of the requirements are met the convention must be applied and preempts the use of all other methods of service.
The Hague Convention provides one main and several alternative channels of transmission of the documents to be served. The main channel is from the judicial officers of the requesting country (referred to as “state”) to the so-called Central Authority of the receiving country. All signatory countries must denominate a Central Authority that both receives and executes requests for service of process. To make a request, one must file the Hague Convention Form USM-94 available in any U.S. Marshals Service office together with two copies of the documents to be served (hereinafter Practice Note). The request can only be forwarded to the Central Authority (in the U.S., it is the Department of Justice) from what is described in the convention as a “competent authority.” In the U.S., the competent authority includes any court official or attorney. The service rendered by the Central Authority is generally free of charge, but some jurisdictions require a translation of the documents to be served.
The Hague Convention further furnishes several alternative channels of transmission, most importantly the international postal channels and direct service through an agent of the receiving state. There is a split in the U.S. courts as to whether the postal channels relate only to judicial documents such as motions or to service of process as well. Ultimately, one must be cautious to check the position of the circuit where the action is filed. Service through an agent means service through the judicial officers, officials, or other “competent persons” of the state of destination. The latter phrase has been construed as anyone who would be competent to serve process within the destination state under that state’s law.
Once the service is executed, the chosen agent is required to provide the party requesting the service with evidence of the service. The party must file the evidence with the court where the litigation is pending as a proof of extraterritorial service. The procedure for filing the proof is dependent on local rules of procedure and varies from state to state.
The other pivotal international treaty is the Inter-American Convention on Letters Rogatory and its Additional Protocol, adopted in 1975 in Panama (hereinafter Inter-American Convention). The Inter-American Convention constitutes an important supplemental means of service in countries of the Central and South Americas, which are mostly not a party to the Hague Convention. The Inter-American Convention constitutes a non-exclusive method of effecting service between its signatories.
Like the Hague Convention, the Inter-American Convention applies in proceedings in civil and commercial matters. However, the Inter-American Convention allows the signatories to extend its applicability to other areas as well. So far, only Chile has made use of this opportunity and broadened the scope to cover criminal and administrative cases.
With respect to channels of transmission, the Inter-American Convention is limited to letters rogatory—in other words, official requests from one state to another to assist with the administration of justice. All signatories must establish a Central Authority for receiving requests and executing the service. A party wishing to make a request for service must file Form USM-272 and 272A and the documents to be served, all in three copies. The party must obtain the seal and signature of the court clerk that issues the process, as well as the signature and stamp of the Central Authority of the country in which the court sits, which poses an extra financial burden. Furthermore, all documents to be served must be translated into the language of the destination country.
The Inter-American Convention has been subject to criticism. Some states have failed to designate Central Authorities at all, while others claim not to receive requests transmitted by the U.S. Central Authority. Moreover, the process is said to take up from six months up to a year—that is, when it actually works.
When there is no applicable international treaty or when the treaty is non-exclusive (such as the Inter-American Convention), service may be executed by any of the procedures under federal Rule 4(f)(2) and Rule 4(f)(3), provided they are reasonably calculated to give notice of the service.
Service in State Court Proceedings
In case the American owner of the sports bars decides to commence the action in a state court, the analysis is somewhat similar. The preemptive powers of international treaties apply to proceedings in the federal courts as well as state courts. If there is no applicable treaty, the respective state law where the action is filed governs. Naturally, the procedural rules regarding extraterritorial service widely vary from state to state.
For example, New York, California, and Florida laws allow process to be served outside of the state in the same manner as service is made within the state. In addition, New York law allows process to be served outside the state by either a New York resident who is authorized to serve process within New York or anyone authorized to serve process under the laws of the foreign country. California supplements the regular methods by service by first-class mail, postage prepaid, requiring a return receipt together with a presumption of delivery on the tenth day after such mailing.
For more detailed discussion of the methods of service of process outside the United States, further information may be found at the websites of the Department of State, Hague Convention, or the Practical Law Company Practice Note.
Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at email@example.com.
Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at firstname.lastname@example.org.
 Legal Information Institute, Service of Process, https://www.law.cornell.edu/wex/service_of_process (last visited Feb. 12, 2016).
 Outline: Hague Service Convention, https://assets.hcch.net/docs/f4ccc07b-55ed-4ea7-8fb9-8a2b28549e1d.pdf (last visited Feb. 12, 2016).
 Status Table of the Contracting Parties, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Feb. 12, 2016).
 Practical Law Company, International Litigation: Serving Process outside the US, Practice Note, http://www.proskauer.com/files/News/5b04a3dd-34ab-40f4-a64f-3bc52468277a/Presentation/NewsAttachment/db2a546c-d01c-4ce3-815a-43df368f05c8/Proskauer_122011_Practical%20Law%20Company_Scullion_Berkowitz_McNew_International%20Litigation_Serving.pdf(last visited Feb. 12, 2016), at 8.
 USA Central Authority and Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=279 (last visited Feb. 12, 2016).
 Inter-American Convention on Letters Rogatory, General Information on the Treaty, http://www.oas.org/juridico/english/sigs/B-36.html (last visited Feb. 12, 2016).
 Service of process, https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html (last visited Feb. 12, 2016).
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