When a foreign client is sued in a U.S. court, the first question we typically address is the issue of how the complaint was served. It is not uncommon for some plaintiff’s lawyers to attempt service of process over a foreign entity by mailing the complaint to the company’s headquarters. If the entity that you are representing resides in a county that is a signatory to the Hague Convention, then the issue may be well settled. However, in those instances where you are defending an entity that resides in a country that is not a signatory, then the issue can become more difficult to resolve.
We recently dealt with this issue on behalf of an Indonesian manufacturer that had received a copy of the summons and complaint through international mail. Mail is not a method of service prescribed by Indonesian law, nor was it a method directed by an Indonesian authority in response to a letter rogatory. In fact, mail service is arguably prohibited by Indonesian law. Therefore, at first blush, mail service on our client had to be improper.
Rule 4 of the Federal Rules of Civil Procedure provides a number of alternative methods for serving a defendant in a foreign country. If the foreign country is a signatory to an international service agreement, such as the Hague Convention, service may be accomplished by the means authorized by that agreement. But what if the defendant resides in a country that is not a signatory to such an agreement? In that case, service can be made as prescribed by the foreign country’s laws or as directed by the foreign country in response to a letter rogatory. Service may also be effectuated by mail that requires a signed receipt provided that such service is not prohibited by the law of the foreign country. Rule 4 further provides a catch-all: a court may order any service method so long as that method is not prohibited by an international agreement.
Unfortunately, in our client’s case the plaintiff had done an end-run around the expressly authorized manners of service. The day the summons was issued, the plaintiff filed an ex parte motion requesting the court to authorize service by international mail. The court granted the necessarily unopposed motion the very next day.
But what about the fact that Rule 4 only expressly authorizes mail service if such service is not prohibited by the foreign country’s law? Courts have refused to authorize mail service in such instances. Courts have also refused to authorize service under the catch-all provision when the plaintiff has not first attempted any of the expressly authorized manners of service. However, Rule 4 does not actually place these restrictions on the court’s discretion. The only restriction on the court’s discretion is that the ordered method not be prohibited by international agreement, which in the case of an Indonesian defendant does not exits.
In our experience, when a defendant must be served in a foreign country, plaintiffs will attempt to craft their own method of service, including one that is prohibited by the foreign country’s law. Taking this route is not without its risks for a plaintiff due to the difficulty in enforcing an eventual judgment in the foreign country when service was executed by a method prohibited in that country. This is another reason a court should be hesitant to order alternative service.
From a foreign defendant’s perspective, there are two important things to remember. First, be vigilant. One cannot rely on service only being effectuated through a letter rogatory process or other familiar method. Second, engage in a careful assessment of the benefits of challenging service. In our case involving the Indonesian manufacturer, the plaintiff’s ex parte motion to the court asking for service by international mail created an uphill battle that essentially required the defendant to ask the court to change its mind. Therefore, there must be clearly defined and understood goals before undertaking the task of challenging international service.