by Wilton H. Strickland

It’s no secret that technology has made the world a smaller place.  My interest in international law seemed odd or impractical back when I was attending law school, and although that wasn’t too long ago, those days are clearly over. It is nearly impossible for a practicing attorney today to avoid contact with international legal issues, which run the gamut from business transactions; extraditions; commercial arbitrations; discovery; collecting on a judgment; or, as I will discuss today, serving a civil complaint. As any litigator knows, service of process is vital to establishing jurisdiction over the defendant and supporting any judgment ultimately rendered, so it is worthwhile to pause and consider how to accomplish service on someone who resides in (or has fled to) a foreign jurisdiction.

First and foremost, you must throw out your state’s rules governing service of process if the defendant is in another country. This is because service abroad is governed by the Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters (the “Convention”). The Convention applies “in all cases . . . where there is occasion to transmit a judicial or extrajudicial document for service abroad” and pre-empts any contrary state practice by virtue of the Constitution’s Supremacy Clause in Article VI. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

The primary means for serving process under the Convention appear in Article 5, which provides for delivering the relevant documents in the form of a request to the designated “Central Authority” in the receiving jurisdiction. Once the Central Authority receives the documents, it serves them on the named party in a manner consistent with its domestic law, and it then issues a certificate of service. To ascertain the Central Authority for a given country, you can consult a fully annotated version of Rule 4 of the Federal Rules of Civil Procedure, or you can visit the Hague Conference Service Convention page.

A riskier option is attempting simply to deliver process through the mail, something many plaintiffs have attempted because of confusion surrounding Article 10(a) of the Convention, which reads as follows: “Provided the State of destination does not object, the present Convention shall not interfere with a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Even if the foreign jurisdiction has not voiced an objection, I caution against mail service unless the federal courts in the circuit where you practice specifically approve it.  The two jurisdictions where I practice — the Ninth and the Eleventh Circuits — reject mail service outright. See, e.g., B.G. Wasden v. Yamaha Motor Co., Ltd., 131 F.R.D. 206, 208, 209 (M.D. Fla. 1990); Brockmeyer v. May, 383 F.3d 798, 808 (9th Cir. 2004).

Of course, there’s always the option of old-fashioned personal service. Although the Convention does not specifically address personal service, a plaintiff might attempt it by invoking Article 19 of the Convention, which states as follows:

To the extent that the internal law of a contracting state to the Convention allows methods of transmission, other than those provided for in the Articles, of documents coming from abroad, for service within its territory, the Convention shall not affect such provisions.

In other words, if the country in question has not objected to personal service, and if the domestic law of that country allows it, then such service most likely complies with the Convention. See, e.g., Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1278, 1279 (S.D. Fla. 1999) (upholding personal service of process in Spain because Spain had not objected to it, and Spanish law allowed for it).

Another ostensible option appears in Articles 8 and 9 allowing for service through our own diplomatic or consular agents. However, federal regulations foreclose this for Americans, emphasizing that service of process is not a government function and generally prohibiting the Foreign Service from assisting with it. 22 C.F.R. § 92.85.

Last is the option of asking the defendant to accept service even if it does not strictly comply with the Convention (e.g., mailing the documents and asking the defendant to waive formal service). I believe this is improbable to say the least, but hope springs eternal.