General Practice, Solo & Small Firm DivisionMagazine
Service of Process Abroad
BY Edward Burton
One fine morning in July, you arrive a little late at your office to find your oldest and dearest client, Ignatius Benjamin Haad, striding up and down, chomping on his cigar. (You have never been able to break him of the habit of smoking in your office.) He has otherwise been the perfect client for years, always paying by the tenth of the month, sending you gifts on holidays, and referring numerous other paying clients. This is a man you like to please!
"Counselor," he says with tears in his eyes, "I’ve been betrayed." He pauses, gulps, and says, "My wife has run off with my bookkeeper, and the bookkeeper has run off with my business partnership’s bank accounts."
"I’m sorry for your trouble, Ben," you sympathize, "but, legally speaking, it’s a no-brainer. You can sue the wife for divorce, sue the bookkeeper for conversion, and report him to the police for embezzlement besides. We’d best work quickly. And I’ll put my associate onto the question whether her participation in the theft will be useful in the property disposition."
"I’m glad to hear that," he says. "I was worried that their going to Israel by way of Switzerland was going to cause a problem." His eyes full of trust, he asks, "How do you sue them in Israel, or get my money back from Switzerland?"
Ooops! Now What Do You Do?
This is not an academic question. Our world is getting smaller every day. A former partner of mine found himself litigating in Alaska about matters taking place in the Middle East and Europe.
Service of process has always been easy—you simply tell The One Who Runs The Place (your secretary) to file the summons and complaint and get them served. (The truth is, you haven’t the foggiest notion how to do that yourself, or what the filing fees are, either—right?) Now all of a sudden you’ve got a situation TOWRTP has no clue about, and it’s a problem
Rule of thumb No. 1 (which your favorite malpractice carrier will be thrilled for you to follow) is probably familiar to you: If you’re going to be doing business in someone else’s jurisdiction, you had best find a lawyer living in and familiar with that jurisdiction to assist you. If nothing else, such a lawyer can confirm that you are doing things correctly. You need to find that lawyer.
Rule number two, blessedly, is that there is a supremacy clause in the Constitution that refers to treaties, to ensure that whatever you do in conformance with a treaty will work in your clerk’s office—even if a little education may be needed.
Matters that cross national boundaries to affect trade and commerce are a common topic for treaties. People do business across boundaries all the time and can’t afford to roll the dice on the security of their contracts with each deal. Commerce demands comity, which provides a species of full faith and credit.
What Does Your Client Really Need?
There are multiple approaches to service of process for an American court action in which service of process occurs in a foreign country. These approaches differ in concepts and consequences; to determine what approach would work best, you need to determine what your client’s interests in the matter really are.
Is your client in a hurry? Is it sufficient for your client that the American court will accept service as valid? Does your client need to enforce in a foreign court the relief obtained in an American court?
Ben Haad needs a divorce. Mrs. Haad is in Israel. Your client wishes to adjudicate American real and personal property marital assets. There is no need to enforce the judgment overseas. Simplicity and salability to an American court are important considerations.
However, the embezzled money is likely in Switzerland. Mrs. Haad’s interest in marital property in America may or may not be of sufficient value to reimburse the partnership of its losses to embezzlement. Civil relief against Mrs. Haad and the bookkeeper in the United States may be insufficient. Enforceability in Switzerland would then be critical. But if the American court deals with the stolen property in the property division, what effect will the Swiss court give the American adjudication in Swiss proceedings? Does the interest of Mr. Haad’s partner in that business complicate matters? Can the divorce court adjudicate Mr. Haad’s partner’s claim against Mrs. Haad? Whatever your court’s resolution, will it be necessary to get at assets in Switzerland to complete the process, and how will the Swiss court view the decisions of the American court? Will you have to litigate all over again the propriety and the amount of the application of marital assets to partial satisfaction of the claim?
Rules and Approaches to Service
There are treaties that deal with lawsuits initiated in one country that require service of process in another. Under the various treaties and U.S. domestic law, you have are a variety of options to accomplish Mr. Haad’s chore. However, procedures fostering speed and simplicity, on the one hand, and procedures leading to full enforceability of the resulting judgment, on the other, are not necessarily the same.
Compliance with accepted procedures under treaty tends to be more complex, expensive, and time-consuming than alternatives. Additionally, time-consuming procedures may not help when you’re chasing an artful dodger. However, a judgment obtained in this manner is more likely to be enforceable overseas.
You also have your own local court rules and statutes respecting "long-arm" jurisdiction to consider, in terms of service of process beyond the limits of your state. If those will satisfy your court, then personal relief is obtainable, provided you are not concerned with overseas enforcement or with possibly facing an inconsistent foreign judgment.
The two most relevant international agreements are the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (the Hague Convention), which includes the United States, among others; and the Inter-American Service Convention, with an Additional Protocol. The latter agreement is in effect in a number of western hemisphere jurisdictions, including the United States. Service may be made in accord with either of these treaties. Possible approaches, in order of time and complexity, include the following.
Letters rogatory. This form of service is recognized under the Hague Convention. In some countries it is the only permitted form of service. The procedure involves a formal request by your local court, addressed to a suitable court in the foreign jurisdiction, for issuance of process. Service of foreign summons (or its local equivalent) is accomplished by foreign personnel. This procedure is foolproof regarding subsequent enforcement of an American judgement, because the issuance of summons is by a court having indisputable personal jurisdiction over the defendant. It is, however, a complex process.
Service by central authority. Provided for under the Hague Convention, service of an American summons is accomplished by appropriate foreign government personnel, often the police. All courts in signatory countries regard service of process done in this fashion as lawful and sufficient process to accomplish service. Hence, your judgment is again foolproof. In some countries, such as Germany, the courts provide that this is the only form of service of foreign process that may be used within their territory.
International registered or certified mail. This is provided for under the Hague Convention, but not all signatories to the Convention permit its use within their territory. (Under the Hague Convention, parties may opt out of one or more forms of service.)
The mail process is disarmingly simple, and many practitioners already use it within local American jurisdictions. Some of us, however, have always been nervous about this procedure. It is difficult to imagine that the green return slip will suffice if the actuality of service is questioned. One should not delude oneself that the postal clerk will claim to recognize the defendant as the person who signed the slip. If the signature on the slip is later denied, or if the signature is obviously not the defendant’s, any resulting judgment will rest on eroding sand. Sustaining that judgment through use of handwriting experts could turn out to be far more expensive and time-consuming than using another form of service at the outset would have been. Proving that the "John Smith" who signed the slip was an adult who in fact resided with the defendant—overseas—would be no less daunting a task.
Additionally, the court in the foreign jurisdiction may not be accustomed to such service; may simply not permit this process to be used; or may be reluctant as a matter of law to acknowledge that your judgment is valid, no matter who signed the receipt, or no matter where Mr. Smith lived.
Service in person by agent. This is also a form of service recognized under the Hague Convention, but, again, not all signatories permit its use within their territory. With the cooperation of a foreign advisor, service is accomplished face to face, as in the United States. This procedure is a little more complex, however, in that you, working with your foreign advisor, must provide instructions in the foreign language, and the local process server may need more specifics than you are accustomed to giving (who gets which copies of what, for example). Paperwork, too, must be provided in the local language, unless the defendant voluntarily accepts service. Residual major problems are that the foreign court later may not be accustomed to such service, may operate under rules that forbid this process, or may be reluctant as a matter of its law to acknowledge that your judgment is valid.
Service by publication . This is a familiar procedure for most of us. It often involves mailing a notice to a last-known address, which is a step in the process open to much factual questioning. All the usual concerns about publication apply, as do questions of proving the use was appropriate and correctly done. As with the above option, residual problems are that the foreign court later may not be accustomed to such service, may operate under rules that forbid this process, or may be reluctant as a matter of its law to acknowledge that your judgment is valid.
Waiver of service . One may simply ask the absconding bookkeeper and spouse to waive formal service. This method is extremely efficient when the defendant cooperates, but how often is that? However, if subsequent foreign proceedings are contemplated, this is a dice-roll. Will a foreign court acknowledge that service of process can be waived? Where the foreign court is hospitable to defenses, could you prove whether service was intelligently waived or the waiver was fraudulently induced? Again, residual major problems are that the foreign court later may not be accustomed to such service, may operate under rules that forbid this process, or may be reluctant as a matter of its law to acknowledge that your judgment is valid.
Formal Service by Foreign Authority
As you are familiar with waivers, publication, and other usual things one does for domestic service, we will revisit the more formal procedures that are new ground for most of us.
Foreign "Summons-Equivalent." The great advantage of the letters rogatory procedure lies in the enforceability of the American judgment in the country where service of process was issued. (Process, when issued, is of course fully recognized by the foreign local courts, as it is their own process.)
This procedure begins in your local court, where you petition for issuance of letters rogatory to the appropriate foreign court. Both time and overhead are involved, and your foreign local counsel can be invaluable. At this stage, all the material must be translated into the language of the destination court. Because letters rogatory can also be used for purposes of evidentiary discovery, there may be some initial confusion about the use of the process for service of process.
Considerable expense is tied up in obtaining good translations, working with foreign local counsel, and paying filing and service fees. All of these are locally determined; there is no applicable average. This process is very time-consuming, and delays of as much as six months to a year are common. Local counsel is critical to ensure your work is acceptable to the foreign court. Where local court protocol permits, local counsel may be able to try to "walk the papers through."
Information on procedures involved with letters rogatory is available from the Department of State. Legal authority for the issuance of such letters is found in United States Code, 28 U. S. C. A. 1696. See also Rule 4 (f)(2)(B) of the Fed. R. Civ. P. and the Vienna Convention on Consular Relations, 21 U.S.T. 77. Letters rogatory are also discussed in Wright and Miller, Federal Practice and Procedure at §§ 1134 and 2083, and as always do not overlook the Supplements. While good research practice always includes reviewing the Supplements to the texts one is reading, the fact that international relations are forever changing makes it both especially necessary and insufficient. Check with the Department of State.
Procedures for contacting the attention of the foreign court vary among countries. The conduit for the paperwork is the consular service, and the nearest consulate or embassy of the destination country should be consulted to learn local requirements. The State Department cautions that the letters rogatory process is complex, time-consuming, and expensive and should be used only when there is no other form of service countenanced by both jurisdictions.
Service by central authority . Expressly provided for in the Hague Convention (where permitted), this is my choice for most rational compromise between formality and expediency. Proper forms must be used, and all forms, the summons, and the complaint must be translated into the local language. Actual service may be completed within 60 days, although considerable differences in policy exist among the various countries.
To initiate service of process, obtain a Request for Service from USM 94 from the U. S. Marshal’s Service. In the past, the Marshal’s Service requested foreign assistance, but the current practice is for plaintiff’s attorneys to complete the form as the requesting authority. The completed form, two copies of the papers for service, and translations of all papers are sent to the central authority for the country in question. Be alert to the issues about translations. For example, Swiss nationals speak French, German, and Italian; local foreign counsel can guide you in such matters.
The Hague Convention provides for service of process in a manner typically used by the recipient country in domestic actions, which you can select with input from your foreign counsel. You can avoid collateral challenges and select a process that will satisfy both the foreign and domestic courts. You will be billed by the foreign central authority, especially if your defendant must be served in a remote area.
The State Department advises that the Request for Service should prominently display its own authority, namely Rule 4(c)2(A) of the Fed. R. Civ. P. and, for state court actions, also (not instead) the local rule or statute. The U.S. Marshal’s Service can supply you with publications for further information.
After you explain the above options, options for service, and the attendant consequences of each, Mr. Haad will likely agree with you to employ service by the central authority in Israel upon the runaways and, as the economics play out, similar service upon the bank in Switzerland. By doing this, Mr. Haad may avoid later challenge to the American judgments, especially because they involve meaningful sums of money and need to be safeguarded against collateral attack. CL
Edward Burton is engaged in the private consulting practice of law from his base in Lewiston, Idaho, and is currently involved in right-of-way matters in New Mexico, and zoning procedure constitutionality and engineering malpractice matters in Idaho. He can be reached by e-mail at email@example.com.