Foreign defendants located in countries that are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague Convention”)1 must be served pursuant to the Hague Convention. The United States is a signatory to the Hague Convention. Specific requirements, such as serving a complete certified translation of the process and service via a signatory’s central authority, must be complied with to satisfy the mandates of the Hague Convention. Employers located in countries that are signatories to the Hague Convention should be concerned if they are improperly served through a United States subsidiary and the attempted service is not compliant with the Hague Convention. Such attempted service of process is tricky and is often quashed, resulting in the court not having jurisdiction over the foreign defendant at all until proper service of process is made.
Service through a United States Subsidiary
There are limited circumstances in which a foreign corporation may be served in the United States through its wholly owned United States-based subsidiary. Similar to a joint employer analysis, a plaintiff must show that the parent corporation exercised such a degree of control over its subsidiary that the activities of the subsidiary were in fact the activities of the parent corporation within the state.2 This is a high burden for a plaintiff to satisfy, and the mere fact that a party served within the United States is a wholly owned subsidiary of the defendant is not enough to demonstrate the requisite high degree of control. Rather, such substituted service must be supported with facts, such as the parent corporation owned 100% of the subsidiary’s stock and voted at all stockholders’ meetings; the subsidiary’s and parent’s financial statements were consolidated; or that each company’s board of directors, officers, and employees held offices in both corporations.3 Without a sufficient showing of control over the subsidiary, substituted service on a foreign corporation through its wholly-owned United States subsidiary, instead of through the Hague Convention, could be quashed.
Availability of Alternative Service
In the midst of a global pandemic, the question of whether to permit alternative service via e-mail, text message, social media, or weblink may arise. However, alternative service is not usually authorized when Hague Convention service is available. Typically, courts in the Eleventh Circuit permit alternative service only when a defendant’s foreign address is unknown; a defendant successfully evaded service; failure to permit alternative service would result in unduly long delays in litigation; or where attempted Hague Convention service failed.4 Thus, while alternative service via e-mail could be technically easier in light of the pandemic, formal service through the Hague Convention is still available and must be complied with.
Service of process is required to assert jurisdiction over a defendant, but challenges to service of process can be waived if not timely raised. Thus, the prompt evaluation of whether service on a foreign defendant was proper and whether the Hague Convention applies is imperative in determining whether a court’s putative jurisdiction over that foreign defendant can be successfully challenged.