March 01, 2018 Feature

International Law in the Heartland

Anthony Marcum

Not all global litigators are based in major cities lining our nation’s coasts. And not all clients in need of a global litigator are large companies or located in a border state. Savvy attorneys—located in the heartland or elsewhere—understand how seemingly domestic disputes may quickly develop an international flair, and they are prepared to deal with these challenges. Consider the following examples.

The Panicked Father

An attorney represents a father in a custody case in the Mountain West. The divorce has been mostly amicable. The parties have agreed to the division of marital assets, real estate, and personal property. The parties have also agreed to joint custody of their five-year-old son, and the father has enjoyed substantial visitation time. In the spirit of good will, at the end of the child’s first year of school, the father agrees for the mother to take their child on a road trip to Canada to visit extended relatives in Vancouver. The parties agree that the mother and son will return in 10 days. Eleven days later, however, the mother and son are not back. The mother is not returning the father’s calls. And after four days of repeated calls, texts, and emails, the mother finally responds to the attorney’s client and simply states that she is going to remain in Canada with her extended family and will not allow their son to return to the United States.

The father calls the attorney in a panic. “Will I ever see my son again?” he asks. The attorney explains that the United States and Canada have both ratified an agreement called the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention). The attorney further explains that, in applying the convention, the United States allows parents to file claims in either state or federal court pursuant to the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq. In addition to filing an ICARA claim, the attorney recommends contacting the U.S. State Department, which is obligated under the Hague Abduction Convention to help locate an abducted child and attempt to amicably settle the dispute, if possible.

The attorney cautions the father that they must work quickly. Unlike most cases, a Hague Abduction Convention claim is expected to be resolved within six weeks. And, in that short period, the father has the burden of proof to show that his son was wrongfully removed. The attorney therefore stresses that the father must swiftly collect evidence—such as past court orders, texts, emails, school records, and government forms—to demonstrate that the United States is his child’s “habitual residence” and that the child’s removal violated his custody rights.

The Ripped-Off T-Shirt Designer

An attorney represents a solo T-shirt designer in the Midwest. The designer’s T-shirt brand is quickly gaining steam, and sales are growing online each month. One day, the designer calls the attorney in a rage: “Someone is selling my T-shirt design on Amazon!” The attorney eventually discovers that the culprit lives in the Pacific Northwest and learns that the culprit saw the designer’s website and decided to copy the image and sell knockoff T-shirts at local fairs. Eventually, the culprit became brazen enough to start selling his knockoff T-shirts on the Internet, much to the client’s dismay.

The attorney files a Lanham Act claim and seeks to recover profits from the culprit’s online sales. The case proceeds to discovery, where the case hits an interesting twist: The culprit admits during a deposition that his brother—who lives in China—bought hundreds of cheap, Chinese-made T-shirts and shipped them to the United States for the culprit to affix the client’s designs and sell them at a cheaper cost.

The attorney now joins the culprit’s brother as a codefendant. To make matters more complicated, the culprit’s brother is a Chinese citizen. The attorney wants to serve the culprit’s brother discovery requests. To do so, the attorney knows he has several options. The first option is to serve the brother pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (the Hague Evidence Convention), which both the United States and China have ratified. However, the attorney also knows that this process may take months and encounter a number of procedural hurdles. Therefore, in the interim, the attorney serves the same discovery requests pursuant to the rules articulated by the Federal Rules of Civil Procedure. The attorney has read Société Nationale Industrielle Aérospatiale v. U.S. District Court for Southern District of Iowa, 482 U.S. 522 (1987), and knows that the Hague Evidence Convention is not the exclusive method for obtaining foreign discovery and that he may use any applicable mechanism to gain as much discovery from the culprit’s brother as he can.

The Unlucky Roofer

An attorney represents a roofer from rural New England. One day, the roofer’s wife calls the attorney to deliver bad news: While the roofer was working on a house, his ladder collapsed, and he fell 10 feet to the ground below. The roofer survived the fall, but he has gone through multiple surgeries and is expected to undergo months of physical therapy. The roofer’s wife is concerned about finances and the future of her husband’s roofing business.

While investigating the incident (and the ladder that caused it), the attorney discovers that, although the roofer purchased the ladder at a local hardware shop, the ladder was manufactured and sold by a Dutch company. The attorney consults with the roofer, and he agrees to file a products liability claim against the Dutch company.

The attorney intends to serve the roofer’s summons and complaint pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), which both the United States and the Netherlands have joined. The attorney’s first step is to exercise reasonable diligence in attempting to discover the Dutch company’s address because the convention does “not apply where the address of the person to be served with the document is not known.” Hague Service Convention art. 1, 20 U.S.T. 362.

After securing a known address, or at least after diligently attempting to find an address, the attorney has several options for service. Although the attorney may be permitted to send the summons and complaint by postal channels, he recognizes that if the Dutch company does not receive the mail (through no fault of its own), the company may be able vacate a future judgment. Consequently, instead of direct service to the ladder company, the attorney will first file a formal request with the U.S. Marshals Service. Next, the attorney will send all forms and documents—preferably written in both English and Dutch—to the Netherland’s “Central Authority,” which will ultimately serve the (now defendant) ladder company.

Takeaway

These anecdotes demonstrate an ever-changing aspect of legal practice. Attorneys who often litigate in the same county, city, or even courthouse must nevertheless appreciate the possible international implications of their practice. This may take the form of understanding the applicable conventions and rules for legal service or discovery, or it may be as simple as knowing what resources to consult when faced with a rare international question. In short, although most litigators never intend to be global litigators, circumstances and clients’ needs may, at times, force them to be.

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Anthony Marcum

The author is an associate editor of Litigation.