Publication: Service of Process in Foreign Lands

Publications

"Service of Process in Foreign Lands", 31 Alameda County Bar Association Bulletin, No. 2, p. 22 (2000)

Service of Process in Foreign Lands
by Patrick Campbell

If you asked the average practitioners how often international treaties affected his or her practice, most would say never. How many of those realize that every time they try to serve pleadings in a foreign country, that also includes Canada for those of us who are geographically challenged (Kott v. Superior Court (1996) 45 Cal.App 4th 1126, 53 Cal.Rptr.2d 215), that this is precisely the case?

Code of Civil Procedure §413.10(c) requires that service of a summons and complaint or petition on a party residing outside of the country complies with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. (Treaty No. 9432, 1969 U.N.T.S. 163; hereinafter "Hague Convention") Article 2 of the Hague Convention provides for the establishment of Central Authorities in signatory countries that are given the responsibility of serving such documents on individuals within their borders. Thus, when serving judicial process in countries that have ratified the Hague Convention, one must generally use the Central Authority charged with serving judicial process under the Hague Convention. This can be a cumbersome process, and even quite confusing when dealing with a country that has a federal system like our own, such as Germany or Switzerland.

Fortunately, the United States has centralized this function by designating the Office of International Judicial Assistance, Civil Division, Department of Justice, Todd Building, Room 8102, 550 11th Street N.W., Washington D.C. 20530, (2020) 307-0983, as the Central Authority in our country. In actions pending in state courts actions, state law designates the person authorized to effect service. And, as one might expect, federal law controls who is to effect service in federal cases. However, the same forms are used to request service. What follows is a brief outline of the steps necessary to effect service. More complete information on the Hague Convention can be obtained from the State Department's website at: http://travel.state.gov/judicial_assistance.html.

You need to use a form USM-94 "Request for Service Abroad of Judicial and Extrajudicial Documents", which can be obtained at the office of any United States Marshal, to start service of process through this formal system. The form also includes a "Summary of Document to be Served". The completed request form and documents to be served, as well as translations thereof into the native language in the receiving country, if not English, should be mailed directly to the foreign Central Authority, as provided by Article 3 of the Hague Convention.

You should complete the USM-94 in duplicate, designating the method of service to be used by the foreign Central Authority. Formal and informal methods of delivery as well as personal service may be designated. The form contains a certificate, which is completed by the Central Authority in the receiving country and acts as the proof of service. This completed form is then returned to the requesting party. The State Department estimates that it can take two months to accomplish service under these methods.

Recognizing the burdensome nature of this process, Article 10 of the Hague Convention does provide for methods of service by private parties directly between countries — and here is the catch — as long as the receiving country did not file objections to such methods of service when it ratified the convention. (Hague Convention, Article 21). Article 10 of the Hague Convention permits service of judicial process a) by "postal channels directly to persons abroad", b) by judicial officers, officials or other competent persons in the state of destination at the request of the same in the state of origin or c) by judicial officers, officials or other competent persons in the state of destination at the request of an interested person in the state of origin. Article 8 permits the service of judicial process through the diplomatic or consular agents of the country of origin, although this is also subject to the consent of the state of destination.

Before you use one of these methods for service, which includes placing all of that extra postage on that registered mail envelope, every practitioner should make sure that the selected alternative method is acceptable service in the country of destination. For example, when the Federal Republic of Germany ratified the Hague Convention, it refused to permit service of judicial process within its territory by these methods. (Ratification, 27 April 1979, 1979 U.N.T.S. 412) Thus, you cannot serve a summons and complaint or petition by registered mail in Germany. Service by mail of California judicial proceedings on a German national is insufficient to establish jurisdiction and a motion to quash the service must be granted. (Dr. Ing H.C.F. Porsche A.G.v. Superior Court (1981) 123 Cal.App.3d 755, 760-62, 177 Cal.Rptr. 155).

As globalization becomes a buzzword of the new millennium, and California continues to attract investment and people from abroad, counsel would well be advised to make him/herself familiar with the provisions of the Hague Convention and, as always, remember to read the footnotes for restrictions on service imposed by the individual foreign countries when they ratified the convention.