Alright. Let’s do this One. More. Time.
Rule 4. Summons
(f) Serving an Individual* in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:
(3) by other means not prohibited by international agreement, as the court orders.
It never ends, apparently. Lawyers seek to circumvent the Hague Service Convention– along with the costs and delays that come with it– by serving foreign defendants via their lawyers right here in the USA. I see no problem with that approach but for the regular use of 4(f)(3) to do it.
This error just keeps going and going and going, like the Energizer Bunny. Except it’s not cute, it’s not funny, and it’s not correct. Rule 4(f) doesn’t apply to service in the U.S.
Period. Full stop. Done.
No amount of sophistry will change the simple, plain reading of the rule. No amount of wishing will overcome the laws of geography and physics.
Except time and time again, lawyers and judges don’t read the text of the rule. Instead, they rely on a string of monumentally bad case law started and perpetuated by earlier lawyers and judges who didn’t read the text of the rule (maybe stare decisis isn’t as great an idea as we’ve always thought?). My white whale looks something like this:
“The Court orders that Plaintiff effect service on defendant NichtAmerika Fabrik GmbH by delivery to the defendant’s attorneys, Dewey, Cheatham, and Howe, LLP of Minneapolis, pursuant to Rule 4(f)(3).”
So let’s say NichtAmerkia Fabrik GmbH is a German limited liability company, and let’s say its lawyers are indeed based in the bigger twin of the Twin Cities. A literal reading of the order would naturally indicate that service is to happen in Minneapolis. Last I checked, that fine city lies within a judicial district of the United States (or did I miss the whole “Minnesota secedes” story on OAN?).
But the rule says it applies to service at a place not within any judicial district of the United States. The folks at the U.S.D.C. for D. Minn. are going to be awfully surprised to hear about their ejection from the USA.
Y’all, there’s only one way service on a foreign defendant’s U.S. counsel actually works, and that is by agency theory, pursuant to Rule 4(e)(2)(C) or Rule 4(h)(1)(B)— or by state rules in the jurisdiction where service is effected. If you go that route and the court agrees with your argument, huzzah. Bully for you. You needn’t worry about international law.
Just don’t base your motion on 4(f)(3), which I’ve ranted about previously.
“But, wait,” you might say, “service isn’t completed when it gets handed to the lawyers in Minneapolis. It’s completed when the lawyer passes the process on to his/her client in Germany. It’s served at a place not within a judicial district of the United States, so 4(f)(3) actually is the way.”
Oh, so you’re saying the lawyer isn’t the defendant’s agent– he’s just a conduit, then?
Well, okay, fair enough. That still means somebody has to send the stuff to Germany for service to be completed, right?
Hmmm. That sounds a lot like the lead-off batter in the Hague Service Convention.
Article 1
The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.
Look, I get it. You’re trying to save your client’s resources. You’re trying to save everybody some time, including the court. But I think Justice O’Connor might have something to say about your theory. She might say that if the Hague Service Convention applies, you have to follow it.
Except there’s no “might” about it. She actually said precisely that in Volksawagen v. Schlunk. Seriously, click that link, and you’ll go straight to the paragraph where she quotes the lead-off batter in Article 1.
So you say your service is ultimately effected in Germany. That implicates the Convention. That in turn necessitates translation and the involvement of German judicial officials. Costs and delays are inevitable, and going through U.S. counsel doesn’t make the requirements go away.
Link to So knock it off. So knock it off.
* Applies to entities as well– most of 4(f) is incorporated into 4(h)(2) by reference.
For a more academic analysis, see Prof. Bill Dodge’s excellent take on this topic in “The Impossibility of Schrödinger Service” over at the Transnational Litigation Blog. The cat can be dead, or it can be alive. It can’t be both. And my take on it is that service on U.S. counsel is valid under Mullane analysis, but it doesn’t implicate Hague strictures. Problem solved.
Maybe.