Hey, look! A listicle! (Author’s note: this was originally just titled “Ten erroneous defense arguments…” but as I got deeper into the drafting, I realized that, while they’re all erroneous, several of them are downright stupid. There’s no diplomatic way to put that without losing effect.)
Picture this: a litigator in Notkansascity taps us on the shoulder one bright sunny morning, looking to hire us to have a defendant in Notamerica served with a summons and complaint. That shoulder tap happens dozens of times a week, because all we handle is the conveyance of documents pursuant to the Hague Service Convention.* In a perfect world, everything works like a charm and we get proof of service back in a reasonable amount of time. More often than not, that’s precisely the way it happens, and our client is pretty happy with the result. Occasionally, though, we’ll later field a distraught email from the same litigator saying “defense counsel says we don’t have effective service because (XYZ). Why didn’t you do it correctly?“
Well, for starters, we did do it correctly. But you’ve got to cowboy up– or cowgirl up– and push back. Stop letting somebody who doesn’t know what they’re talking about tell you that you (we) screwed up, because you (we) didn’t. Even more likely, they’re trying to get away with something, thinking you (we) don’t know any better. But you (we) do.
Here are the greatest hits we’ve seen over the years, in no particular order but the last one. Grounds for sanctions lie in here, gang. Seriously.
Link to 10. It has to go through a Central Authority or it’s not valid. 10. It has to go through a
Central Authority or it’s not valid.
In what I call “5-O” countries, that’s accurate– think China, Germany, Mexico, just to name our most frequent destinations in that category, countries that object to Article 10. But in jurisdictions where Article 10 of the Convention is in play, this is a staggeringly dumb argument. When that assertion gets made about Canada, England, Australia, or the Netherlands (among others), I can confidently tell my client that defense counsel doesn’t have the first clue what he’s talking about and should thus be verbally slapped about the head and shoulders. Defense counsel has demonstrated a fundamental ignorance of how the Service Convention works; and a motion for sanctions would be appropriate. At the very least, call that guy out for being a knucklehead at the next bar association happy hour.
Link to 9. If the the Hague Service Convention doesn’tapply, you have to serve by Letter Rogatory. 9. If the the Hague Service Convention doesn’t
apply, you have to serve by Letter Rogatory.
Also no. Well, okay, if you think you’ll have to enforce your judgment abroad, the Letter Rogatory route is the slam dunk way to go. But you don’t have to.
Real war story here. I was sitting second chair on a case in which German authorities kicked a Hague Request back to us because of Missouri’s split recovery statute. Seems the Germans feel that, if the state is going to take part of a jury award, it’s no longer a civil or commercial matter (which is what the Convention covers). It’s at least partially an administrative matter, not unlike what you’d see at the SEC or other regulatory agency with the power to punish. It’s a plausible (though inconvenient) argument, and I can’t say I disagree with it.
Okay, says I, we’ll ask the judge for an order to serve by email— which the judge grants– because the Convention doesn’t apply any more. Defendant hires counsel, a bigtime white shoe firm back east** (which hadn’t ever hired us and probably never will), and that firm sends one of its top guns out to the flyover** to make this thing go away, pro hac vice style.
“Your honor, I offer the Court a great blog post that lays out the process for Letter Rogatory service pretty succinctly; absent a specific Missouri rule authorizing e-mail service, it’s the only way. May I approach?”
Top Gun hands a printout to us, astonishing both me and first chair counsel, before handing a copy to the judge. The judge looks at me, grinning like a Cheshire Cat, because the fellow hadn’t bothered to find out who was sitting at plaintiff’s table. “Well,” says the judge, “let’s ask the author of this post what he thinks. Mr. Lukken, care to weigh in?”
I actually felt sorry for guy. What are the odds, especially in a small town in Missouri?
Sure, judge. I’d be happy to tell you why my learned colleague is wrong. (So his firm will never hire us.)
Point is, when the Hague Service Convention doesn’t apply, plaintiffs aren’t constrained by a treaty mandate, so they can serve in any manner permitted by venue rules. Letters Rogatory are a way to get it done, but not the only way.
Link to 8. A foreign solicitor’s clerk isnot competent to serve. 8. A foreign solicitor’s clerk is
not competent to serve.
This was an interesting one. Also a monumentally stupid argument, but one requiring a nuanced reply. Seems that, when our local counsel’s clerk served a British Virgin Islands corporation, defense counsel objected, asserting that it had to be the solicitor herself who served it. Facepalm that one.
See, the United Kingdom’s original declarations to Article 10(b) are a bit ambiguous, so they were clarified in a 1980 statement from the Foreign Office to the Hague Conference’s Permanent Bureau.
“I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom ‘directly’ through a competent person other than a judicial officer or official, e.g., a solicitor. (…)”
It doesn’t say “by” a solicitor. It says through a solicitor. Straight up agency theory at work here, gang– just like here in the states and in Canada, when plaintiffs’ counsel directs a process server, it’s going to be good service. We do it all the time in the BVI, the Caymans, Bermuda, and Old Blighty, mother England.
Rule Britannia, y’all.
Link to 7. It has to be handed to the defendant in person. 7. It has to be handed to the defendant in person.
Well, no, it doesn’t. That’s just not a thing, at home or abroad, with the exception of our problem-child jurisdictions like British Columbia and Saskatchewan– where, if we don’t get good service we’re not going to file a proof anyway. Our successful proofs are going to indicate chapter and verse to lay out the rule regime that justifies what we did, often when we serve substitutionally on a “person of suitable age and discretion” at the defendant’s home.
Link to 6. And he has to accept it for service to be valid. 6. And he has to accept it for service to be valid.
Again, monumentally stupid. Somebody’s been watching too many movies. Rule 11 should be front of mind here, gang.
The due process standard regarding service of process is very straightforward. There’s no rule saying “thou shalt place physical copies of the documents into the hands of thine adversary.” There just isn’t. You have to undertake (magic words here) a means reasonably calculated, under the circumstances, to give the defendant (1) notice of the pendency of the claim, and (2) an opportunity to be heard. That’s it.
If my guy walks up to the defendant and tries to hand him the documents, he can’t just put his hands up and say “NOPE.” We’ll just drop the stack at his feet and walk off. We don’t give a tinker’s cuss if he just leaves them there. Look up Mullane and you’ll get the point.
Link to 5. Service can’t be effected by mail. 5. Service can’t be effected by mail.
Okay, this one’s a bit ambiguous. I usually argue that serving by mail by itself is a bad idea in Article 10 jurisdictions, and it’s completely invalid in the aforementioned 5-O jurisdictions.
But many Central Authorities serve by mail pursuant to their own laws– U.S. expectations notwithstanding. And in much of the U.S., we have a thing called “nail & mail”. We literally nail (okay, duct tape) the docs to the defendant’s front door, then follow up with a second set by mail. Does it guarantee that the defendant gets the service? No. But is it reasonably calculated, under the circumstances, to give the defendant (1) notice of the pendency of the claim, and (2) an opportunity to be heard?
Yep. It really is. Especially if the guy is evasive.
Link to 4. The mailroom clerk isn’tauthorized to accept service. 4. The mailroom clerk isn’t
authorized to accept service.
I ordinarily agree that Timmy the Mailroom Kid is not a plausible agent for service; that’s part of the reason I contend that direct mail service is a bad idea. But when my agent in Canada, Australia, England, Ireland, etc. pulls the defendant’s corporate registry and it shows a law office as the address for service, the law firm’s receptionist can’t tell my server he has go to the mailroom and then have the law firm contest how we did it. That’s just bad lawyering right there, and I’m happy to call out the knucklehead who makes such a specious argument.
Link to 3. The defendant is not a citizen of that country so you can’t serve him there. 3. The defendant is not a citizen of that
country so you can’t serve him there.
Um… what? Since when?
If I’m walking into my chiropractor’s office in Overland Park, Kansas, I can be served pursuant to Kansas law. Now, Kansas is a very silly place, three miles from my home in Missouri, but if I’m physically present in the state, I’m subject to its laws.
Likewise, if I’m spending the summer in Norway and get sued in the U.S., there’s nothing in any law anywhere– rule, statute, treaty, or otherwise– that says I can’t be served with that summons in Norway.
(If anybody has a home I can rent in Norway, call me, because Missouri really sucks in August.)
Link to 2. The service effected by the destination state’s officials violated the destination state’s law. 2. The service effected by the destination state’s
officials violated the destination state’s law.
This one is marginally plausible– when we get a Hague Certificate, the form of proof mandated by Article 6, we have to take it at face value and so does the court. But the U.S. or Canadian court hearing the case is not the appropriate venue to adjudicate a question of the destination state’s laws. It’s up to the foreign Central Authority to say whether service was valid under its rules of practice. Sorry, defendant, you want to say your own country’s officials bungled it, you’re going to have to litigate that question back home.
Link to 1. Tell the Chinese authorities to do it right. 1. Tell the Chinese authorities to do it right.
Oh boy, the big one here. Quite possibly the dumbest thing I’ve ever heard in court.
Huh? That was literally my knee-jerk reaction when I testified as an expert in a case where local Chinese officials bungled a very simple service on a corporation at its documented, registered address. “No such defendant at the address provided” was the basis for failure in the Certificate, even though the registry said we had it right and the defendant later said we had it right. We moved for (and were granted) a 4(f)(3) order to serve by email. Although that’s Mullane-valid, it conflicts violently with the Hague Service Convention, but if you don’t know a defendant’s address the Convention doesn’t apply. And the local official’s assertion trumped the rest of us.
So into court we go, and my client enters me as an expert (with voir dire from the defense, mind you) before he direct examines me as to the applicable law and our efforts. Defense counsel, herself a Chinese lawyer admitted in the U.S., crosses me, and essentially calls me stupid before the judge reminded her that he’d already deemed me an expert and an officer of the court, so she’d better watch her attitude.
Astonishingly, she asked me “why don’t you just go back to the Chinese authorities and tell them to do their job properly?”
Well, counsel, I would think that you know better than anyone on this call (it was a phone hearing) would understand that it’s not wise to tell the Chinese government what to do.
The judge didn’t hit his mute key quickly enough to mask his guffaw.
I’ll leave it at that.
* Although we do handle service in non-Hague countries too, from time to time.
** Back east is how we in the flyover refer to people on the coast who consider us the flyover. We get to call it the flyover. You do not.