A Primer on Service of Process

Serving process on a defendant does two things: (1) it asserts the court’s authority over the defendant; and (2) it provides the defendant with notice of the lawsuit. In the United States, process can be served by private parties. But many foreign states regard service as a public act that can be done only by government officials. International treaties, such as the Hague Service Convention, have addressed this problem by establishing a means of serving defendants abroad. This Primer discusses the state and federal rules relevant to serving foreign defendants, as well as the international conventions that may be used to serve defendants outside the United States.

Due Process Requirements

The notice function that service performs has a constitutional aspect. The U.S. Supreme Court held in Mullane v. Central Hanover Bank & Trust Co. (1950) that due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Service in both state and federal court is subject to this constitutional requirement.

Service in State Courts

For suits in state courts, state law governs service of process subject to the due process requirement discussed above. New York, for example, has provisions for serving natural persons and corporations, among others.

All fifty states require foreign corporations doing business within the state to register and appoint an agent in the state for service of process. Most states permit substituted service on the secretary of state or another state official if a registered corporation fails to appoint an agent or its agent cannot be served. Many states additionally permit substituted service on state officials when a foreign corporation does business in the state without registering. (A survey of state statutes on substituted service is available here.)

Some states also allow a local subsidiary or other affiliated company to be used as an involuntary agent for serving a foreign company. Most states permit this only when there are grounds for piercing the corporate veil (again, a survey is here). But California, Illinois, and Massachusetts go further and permit substituted service on an affiliated company when such service will provide adequate notice to the defendant. Because such service occurs within the state, it can affect the applicability of the Hague Service Convention, as discussed below.

Service in Federal Courts

For suits in federal courts, Federal Rule of Civil Procedure 4 governs service of process. Several provisions are potentially relevant. First, under Rule 4(d), a plaintiff may request that the defendant waive service. However, a foreign defendant’s failure to waive service does not make it potentially liable for the expense of serving process as Rule 4(d) does for domestic defendants to give them incentives to waive.

Second, under Rule 4(e)(1), a plaintiff may use state rules for service of process, including the forms of substituted service discussed above. That can enable the plaintiff to complete service within the U.S. judicial district even though the defendant is located outside the United States.  So, for example, a complaint filed in federal court in California may be served domestically on a foreign corporation by serving its local subsidiary in California.

Third, under Rule 4(f), a plaintiff may serve a foreign defendant in a foreign country in several different ways. Rule 4(f)(1) permits service pursuant to a treaty and specifically mentions the Hague Service Convention, discussed below. When there is no treaty, Rule 4(f)(2) permits service: (A) pursuant to the receiving country’s laws; (B) as a foreign official directs pursuant to a letter rogatory or letter of request; or (C), unless prohibited by the receiving country’s law, by personal service or by letter sent by the clerk of the court. Finally, Rule 4(f)(3) allows the court to order other means of service so long as they are “not prohibited by international agreement.”

Several important questions have arisen under Rule 4(f)(3):

• Although the Advisory Committee encourages federal courts to respect foreign law, courts have held that Rule 4(f)(3) allows them to order means of service that violate foreign law.
• Courts have sometimes authorized service by email on foreign defendants, including when the defendants are located in states party to the Hague Service Convention. Because Rule 4(f)(3) permits only means that are not prohibited by international agreement, the permissibility of email service in such cases turns on the interpretation of the Hague Service Convention, discussed below.
• Courts have also sometimes authorized service on a foreign defendant’s U.S. counsel under Rule 4(f)(3). By its terms, however, Rule 4(f) applies only to service in a foreign country. And Rule 4(e), which governs service within a U.S. judicial district, contains no provision like Rule 4(f)(3) allowing a court to order other means of service.

Fourth, Rule 4(h) extends the means of service permitted for individuals under Rule 4(e)(1) and 4(f) to corporations, partnerships, and associations, except for personal service. Thus, in general, the same rules for service apply to individual and corporate defendants.

International Conventions

The United States is party to two international conventions providing for service of process.

The Inter-American Convention on Letters Rogatory

The 1975 Inter-American Convention on Letters Rogatory is the less important of the two. Sixteen Latin American countries are parties to the Convention, plus Spain and the United States. It authorizes service through a letter rogatory issued by a U.S. court and transmitted through either judicial or diplomatic channels to a Central Authority designated by the receiving state. The Inter-American Convention’s procedures are not exclusive and do not preclude the use of other methods authorized by state or federal law.

The Hague Service Convention

The 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, or Hague Service Convention, is a treaty that the United States and 78 other countries have joined. It applies whenever there is occasion to transmit a document for service abroad, unless the address of the person to be served is not known. The Supreme Court has held that when it applies, compliance with the Convention is mandatory.

Permitted Means of Service

The Convention requires each treaty party to designate a Central Authority to receive requests for service from other treaty parties, to serve them according to its own law, and to return a certificate of service. In contrast to the Inter-American Convention, the plaintiff may itself transmit the request for service to the receiving country’s Central Authority and need not go through judicial or diplomatic channels.

The Convention permits certain additional methods of service if the receiving country does not object, including service through diplomatic or consular agents under Article 8 and service through “postal channels” or officials of the receiving state under Article 10. Objections to these additional methods may be found in the status tablefor the Convention. Article 11 allows states to agree on additional methods of service, and Article 19 permits service under the domestic law of the receiving state.

Default Judgment

Article 15 allows each treaty party to declare that a default judgment may be given if service was transmitted by one of the methods provided in the Convention, at least six months have elapsed, and no certificate of service has been received even though every reasonable effort has been made to obtain one. The United States has made such a declaration. Article 16 allows for the reopening of a default judgment if the defendant did not receive notice in time to defend and has a prima facie defense on the merits.

Service by Email

A recurring question has been whether the Hague Service Convention permits methods of service not mentioned in the Convention, such as email. Because the consent of the receiving state is generally required for additional methods, either in the form of non-objection under Articles 8 and 10 or in the form of affirmative agreement under Articles 11 and 19, the best interpretation of the Convention is that it does not permit additional methods of service to which the receiving state has not explicitly agreed.

Uncooperative States

Russia suspended judicial cooperation with the United States in July 2003 and has refused to process U.S. requests for service under the Hague Service Convention since then. As alternatives, some courts have authorized service by email and/or service on U.S. counsel. As discussed above, service by email is likely prohibited by the Convention, and service on U.S. counsel is not authorized under Rule 4(e) or (f). One commentator has suggested that the United States should declare Russia in material breach of its obligations and suspend the Convention with respect to Russia, thereby removing any limits the Convention places on serving persons in Russia. In the absence of such action, perhaps the best a plaintiff can do is attempt to serve a Russian defendant under the Convention and, after at least six months have passed without a response, move for a default judgment under Article 15.

Avoiding the Hague Service Convention

Given the limits that the Hague Service Convention places on serving foreign parties, parties will sometimes try to avoid the Convention.

First, the Convention does not apply if the defendant’s address is not known, although U.S. courts have held that a plaintiff must use “reasonable diligence” to find the defendant’s address before this exception will apply.

Second, the Convention does not apply unless there is occasion to transmit documents for service abroad. The Supreme Court held in Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) that if service can be completed within the United States under forum law, then the Convention does not apply. In that case, Illinois law permitted substituted service on a foreign corporation’s local subsidiary, making the Convention inapplicable.

As noted above, many state statutes also permit substituted service on state officials in some circumstances. But these statutes generally require the state official to send a copy of the documents to the defendant’s address abroad, and due process likely requires the same when the defendant’s address in known, making the Convention applicable.

The parties to a contract may be able to contract around the Hague Service Convention by appointing an agent for service of process in the United States. Again, in this case, the Convention would not apply because service would be complete in the United States without having to send documents abroad. Alternatively, the contract may waive in advance any requirement of service. Some courts have perhaps embraced this alternative too enthusiastically, reading contractual language designating a means of service abroad as indicating a waiver of service.

Foreign Law

Service of process need not satisfy the requirements of foreign law to be valid in U.S. courts. As noted above, Federal Rule 4(f)(3) even allows federal courts to order means of service that violate foreign law. But it is nevertheless advisable for a plaintiff considering options for service to choose a means that will satisfy foreign courts. Many countries will refuse to enforce judgments when the defendants were not served in ways consistent with their own laws. U.S. judgments become easier to enforce abroad when plaintiffs do not cut corners serving process in the United States.

Conclusion

Service of process is a necessary step in bringing suit in U.S. courts. The means of service must be authorized by state or federal law and consistent with the due process requirement of adequate notice. When the defendant resides in a country that is party to the Hague Service Convention, the defendant may be served by using that country’s Central Authority. But the Convention may prohibit other means of service, including service by email. Parties to a contract may avoid such difficulties by appointing agents for service of process in the United States. Finally, to enhance the enforceability of a U.S. judgment, a plaintiff should strive to serve the defendant in a way that the defendant’s home country finds acceptable.