In most circumstances in domestic litigation, US attorneys are wise to attempt to obtain a voluntary waiver of service by a defendant in order to avoid the often troublesome aspects of formally serving a defendant with process.
In fact, US attorneys are quick to recall that if a defendant refuses to accept a waiver of service, pursuant to the Federal Rules of Civil Procedure and most state analogs, then the refusing defendant will face mandatory sanctions for such refusal.
Federal Rule of Civil Procedure 4(d)(2) directly supports this conclusion and states that “[i]f a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant” the costs of effecting formal service of process, including attorneys’ fees and other “reasonable expenses.” (Emphasis added.)
But, when dealing with international service of process, attorneys should be cognizant of the different rules regarding waiver of service by defendants.
Must foreign defendants agree to waive service?
It is true that a foreign defendant may voluntarily waive service under the Federal Rules of Civil Procedure, thus bypassing the normal requirements of the Hague Service Convention and other treaties.*
But the language of F.R.C.P. 4(d)(2) clearly indicates that a defendant must agree to waive service — and that the sanctions are available for a refusal to waive service — only when the defendant is to be served within the US.
Thus, foreign defendants simply are not obligated to waive service, even when it is properly requested under the Federal Rules of Civil Procedure, and there are no penalties for a foreign defendant’s refusal to do so.
Moreover, there are other issues that US litigants should keep in mind when attempting to obtain a voluntary waiver of service from a foreign defendant.
Issues regarding voluntary waivers of service by
First and foremost, voluntary waivers of service by foreign defendants are fairly uncommon and should not be relied upon as the sole method of effecting service of process when developing a case strategy.
While having a foreign defendant voluntarily waive service of process can be a cost efficient and quick alternative to formal service, foreign defendants with any level of legal sophistication will realize that they are under no obligation to waive service. Thus, a request for waiver simply results in delay.
There are also other important, practical issues that US counsel should consider when deciding whether to seek a waiver.
For example, a foreign court may possibly reject the entire notion that the defendant had the right to waive service of process. The court may view service of process as a function of the State and not something to be negotiated by and between private parties. The US counsel may then be put in a position of having to defend the waiver of service by proving that the voluntary waiver was intelligently made and was not the result of fraudulent inducement by US counsel.
And, of course, attempts to execute a US judgment in a foreign country may be endangered when service was obtained by a voluntary waiver by the defendant.
A foreign court may be ready with all of the above questions — and more — in an effort to protect its citizens from what it may see as an unorthodox or improper method of international service of process.
Serving process abroad is complex. Contact LLS to learn how our professional linguists and experienced attorneys can assist you.
*See 1993 Advisory Committee Notes to FRCP 4(d); Hoffman-La Roche, Inc. v. Invamed, Inc., 183 F.R.D. 157, 159 (D.N.J. 1998).