Hague Convention Service.

The United States, along with 83 other countries, is a party to the Hague Convention. Specifically, Article 1 of the Convention states that the treaty “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” This language, while broad, focuses on the process of transmitting documents abroad, with a key exception under Article 1(2), which states that “This Convention shall not apply where the address of the person to be served with the document is not known.” However, federal courts have required reasonable diligence before applying this exception, and plaintiffs must be able to prove that they have taken appropriate steps to locate the person to be served before they can avoid Hague Convention service.

The U.S. Supreme Court also held in Hague Service Convention cases that “The only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service.” This underscores the fact that domestic service can, in some cases, be sufficient. However, this requires that the person to be served can be properly reached within the United States without the need for documents being sent abroad. As a result, this exception generally does not apply where the person to be served has no apparent residence in the U.S. and is not available in the U.S. for service. This complex interaction between domestic service and Hague Convention service means that plaintiffs must carefully consider their options and the applicable rules in each case. It also raises the question of whether domestic service methods can be used to circumvent Hague Convention service in some cases and if so, how the courts will view such attempts.

How Can Federal Courts Serve a Foreign Person or Company?

The Hague Convention established a system of “Central Authorities” in each member country to receive and execute requests for service. Specifically, Article 2 designates the Central Authority to receive requests, while Article 5 governs serving or arranging service. The Convention also contains several provisions regarding alternative methods of service. For example, the Convention’s Article 10 lists methods of service (such as postal mail) that member countries must permit unless the receiving country “expressly reserves the right” to object under Article 10(a) or (b). However, as discussed in the preceding section, these alternative methods of service may be prohibited if the receiving country has expressly reserved the right to object.

In federal litigation, service of process on a foreign person or corporation must be conducted in accordance with the applicable federal rules and any applicable international treaties. Federal Rule 4(f) governs service on individuals outside United States judicial districts and includes several options. Rule 4(f)(1) focuses on service on “an individual at a place not within any judicial district of the United States.” While this section includes, but is not limited to, the Hague Convention and the Inter-American Convention, it is Rule 4(f)(1) that provides one method of service on individuals in a foreign country. While Rule 4(f)(2) addresses service in a foreign country when there is no applicable specified internationally agreed means and Rule 4(f)(3) permits service via means prescribed by court order, these alternatives are subject to a number of conditions, and they generally do not apply in the same circumstances as international treaty service.

Corporations serving abroad are subject to the same requirements, although the applicable provision of the Federal Rules of Civil Procedure is different. Federal Rule 4(h) governs service on foreign corporations and incorporates Rule 4(f)’s foreign-service framework, provided that such service is done “at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).”

Could Service Through U.S. Counsel Complete Service?

If a plaintiff serves a foreign person or company by physically delivering the process to an authorized domestic agent, this service is completed within the United States and not abroad. As a result, rather than Rule 4(f) and the Hague Convention governing the process, Rule 4(e) for individuals, or Rule 4(h) for corporations, as applicable, governs. Under Federal Rule 4(e), there are two primary methods for serving individuals domestically:

I. Service via an Authorized Agent

One method of domestic service, under Federal Rule 4(e)(2)(C), is to leave a copy of the complaint “delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” As we noted in the preceding section, however, an attorney-client relationship ordinarily does not authorize a lawyer to accept service on behalf of their client. While specific representation agreements may explicitly grant this authority, by itself, an attorney-client relationship will not suffice, and in order to successfully effectuate domestic service on a foreign company or person, the plaintiff must still show that the recipient is authorized to accept process on the defendant’s behalf.

II. Service in Accordance with Applicable State Law

The second method of domestic service under Federal Rule 4(e)(1) allows service to be made “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made;” This means that domestic service on counsel is possible if applicable state law permits it. However, this still requires a finding that such service complies with the requirements of the state’s civil procedure rules, and if this is not the case, then the plaintiff must seek other means of service.

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Which State Rules Permit Alternative Service on Foreign Defendants?

While the federal rules provide a relatively flexible framework for domestic service of process (i.e., Rule 4(e) incorporates applicable state law, and Rule 4(f) is limited to service abroad), state rules vary widely and tend to be more rigid. With the exception of specific borrowing provisions, which are less common than Federal Rule 4(e)(1)’s application, most states do not provide their courts with a wide latitude in applying the laws of other states to service on defendants. Instead, plaintiffs must look to the state’s specific civil procedure rules to find alternatives for service.

New York is a good example of a state with several specific provisions regarding alternative service. Specifically, Section 311(b) of New York’s Civil Practice Law and Rules (CPLR) focuses on service of process on corporations. For a foreign corporation, CPLR 311(b) states that:

“If service upon a domestic or foreign corporation within the one hundred twenty days allowed by section three hundred six-b of this article is impracticable under paragraph one of subdivision (a) of this section or any other law, service upon the corporation may be made in such manner, and proof of service may take such form, as the court, upon motion without notice, directs.”

New York’s CPLR 308(5) provides a court-directed alternative-service procedure for individuals when service is impracticable under the specified preceding paragraphs. For corporate entities, this provision includes a 120-day window for determining whether traditional service has been (or can be) impracticable. When this provision applies, domestic service on counsel may eliminate any need for the international transmittal of documents, and thus any need for Hague Convention service.

Similarly, Rule 1.305(14) of the Iowa Rules of Civil Procedure permits service by other means when none of the state’s designated forms are available. “If service cannot be made by any of the methods provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.” Under this rule, plaintiffs may seek to effectuate service without relying on the Hague Convention provided the alternatives under the state’s rule are proven impracticable or otherwise unavailable.

Why Can Service Fail After a Court Approves the Method?

The last common point for plaintiffs to face questions when seeking Hague Convention service is when their court has approved a proposed method of service. If a court approves a method like mailing, thenmailing the process abroad may create an occasion for Convention service, and the plaintiffs must ensure the process is actually served. If a plaintiff’s request involves a provision (like that under Iowa’s rule discussed above) that requires a showing that the list of permitted methods of service “cannot be used,” this may create an additional burden, because one of these methods (International Convention Service) may still be on the table. New York’s impracticability standard might be less demanding, for example, and Plaintiffs may more easily be able to establish impracticability. This is true, too, in cases involving federal service under Rule 4(e) or 4(f), and plaintiffs must be prepared to support their requests accordingly. If a court-approved method fails to effectuate service, the plaintiff may need to seek an alternative method of service, including one under the Hague Convention. If no Hague Convention service is available, then the court may find that a plaintiffs’ efforts to serve the defendant were sufficient for jurisdiction purposes. In this situation, the court may proceed with the litigation at issue, often even granting the plaintiff’s motion to enter a default judgment. Most surveyed states do not have clear authority on when service of a summons on counsel (i.e. on the recipient’s U.S. counsel) is considered complete service. If service on counsel is complete service, and such service occurred within the United States, then this could again potentially eliminate Hague Convention service. This raises many questions for plaintiffs and the target of service alike.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.