29Jan
By: Tom On: January 29, 2019 In: Uncategorized Comments: 0
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Serving process internationally, especially if translation is required, can be costly in terms of both time and money. Arguably, after investing significant time and money in international service of process, the last thing an attorney wants is to have the service quashed.

So, how do you prevent having your international service of process quashed? The three cases below shed some light on potential pitfalls to avoid.

Case I: Serving Process via Certified Mail When Mail Service is Prohibited [1]

In this case the US plaintiff brought an action against an individual Korean defendant asserting claims based on labor law, tort, and breach of contract. The defendant’s alleged misconduct arose in his capacity as the CEO of a Delaware corporation, which had its principal address in New York. The plaintiff effected service of process (via certified mail) upon the defendant at the company’s New York address. All of the documents served were in English.

In granting the defendant’s motion to quash, the court observed that, according to the Supreme Court, [2] a citizen of Korea must be served pursuant to the Hague Service Convention (HSC). [3] In the Republic of Korea Declarations and Reservations to the HSC, service of process from the United States to Korea is only permitted if it is effected through the Korean Central Authority (KCA); and all forms of mail service are prohibited. The KCA, in turn, requires the request for service to be in both English and Korean. [4]

Despite such negligent service, the court declined to dismiss the case against the defendant:

Because “there is a reasonable prospect that Plaintiff will ultimately be able to serve Defendant properly,” the Court exercises its discretion to quash service instead. Harfouche v. Wehbe, No. 2:13-cv-00615-LDG-NJK, 2014 WL 12646049, *3 (D. Nev. March 14, 2014). As such, Plaintiff shall have 45 days from the date of this Order to effectuate proper service.

While you may think that the court bent over backwards to save the plaintiff’s case, the court’s ruling is an illusion. Under ideal conditions, from the time the KCA receives a request for service, the KCA will require at least 45 days to effect service. So, unless the plaintiff had a request for service in Seoul the moment the judge lowered her gavel, the plaintiff received nothing from the extension of time to serve.

Case II: Failing to Comply with the Foreign Sovereign Immunities Act [5]

The heart of this case concerns what compensation the Republic of Sudan owed the survivors of the USS Cole attack. Because Sudan is a sovereign nation, service upon the Republic of the Sudan is to be pursuant to the Foreign Sovereign Immunities Act (FSIA).[6]

According to the court, in

an effort to effectuate service of process pursuant to 28 U.S.C. § 1608(a)(3), the clerk of court sent the requisite documents ‘via certified mail, return receipt requested,’ in an enveloped [sic] addressed as follows: REPUBLIC OF SUDAN Serve: Deng Alor Koul, Minister of Foreign Affairs Embassy of the Republic of Sudan 2210 Massachusetts Avenue NW Washington, DC 20008.

Someone at the embassy accepted (and signed for) the envelope.

After the Republic of Sudan failed to appear, a default motion was entered. The Republic of Sudan later entered a motion to vacate the default judgment, which was denied. The Republic of Sudan then appealed.

To cut to the chase, we first need to recognize that the Clerk of the Court never initiates service of process. The Clerk has no obligation to verify and double-check statutory law.  The Clerk, however, does follow procedures and instructions on how to serve. In this case, the Clerk of the Court, without question, followed the plaintiff’s instructions on how to mail-serve the Republic of Sudan. This is important because 28 U.S.C. § 1608(a)(3) states:

if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned. (Emphasis added).

The holding in this case is as clear as glass and could not have been easier to reach:

Because the attempted service of process in this case did not comply with the FSIA’s statutory requirements, the district court lacked personal jurisdiction over Sudan and could not enter judgment against it. See 28 U.S.C. § 1330(b) (“Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction … where service has been made under [28 U.S.C. § 1608(a)].”); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (“Personal jurisdiction … is an essential element of the jurisdiction of a district court, without which the court is powerless to proceed to an adjudication.”).

For that reason, the judgments entered against Sudan are void.

Case III: Using an Unreliable Vendor to Serve Process [7]

The plaintiff in this case hired a vendor to serve process on a Chinese defendant. The plaintiff had the documents translated, and turned over the English and Chinese documents to the vendor.[8] The vendor then ceased communication with the plaintiff and the plaintiff never received a proof of service. When the plaintiff filed a motion to extend the time to serve, the judge ordered the plaintiff to obtain a bid from other vendors.

Avoid Quashed Service by Exercising Due Diligence

The common mistake in all these cases is that the plaintiffs did not exercise sufficient due diligence or competency. Thus the key to avoiding having your international service of process quashed is to exercise the requisite due diligence and competence upfront.

A lawyer “shall act with reasonable diligence and promptness in representing a client;”[9] and a lawyer “shall provide competent representation to a client.” Competent representation requires the lawyer to have the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”[10]

In terms of international service of process, this means a lawyer needs to be familiar with:

  • Which countries require service under the HSC; and which countries require service via a Letter Rogatory
  • In the case of Hague signatories, the country’s declarations and reservations
  • In the case of sovereign nations, the ins and outs of the FSIA[11]

Notice the phrase “needs to be familiar.” The rules of professional responsibility do not require a lawyer to be an expert in international service of process. The reason is simple: the lawyer can hire a quality vendor like Legal Language Services to handle the details of international service of process. In life you get what you pay for, and if you hire a fly-by-night vendor (see Case III) to serve process abroad, you should not be surprised if your service is quashed.

Furthermore, failure to exercise due diligence when retaining a vendor for service of process abroad may result in more than a bar complaint. Failure to exercise due diligence when retaining a vendor could potentially trigger a legal malpractice action. In Case II above, the cause-and-effect of the negligent plaintiff’s instructions to the Clerk of the Court and the Cole survivors inability to obtain compensation is pretty obvious.[12]

Always research the law and your vendors when service abroad is required.

If your require assistance serving process abroad, contact the professionals at Legal Language today.

Notes
[1] Baek v. Radish Media, No. CV 18-7475-RSWL-RAO, Dist. Court, CD California 2018.

[2] Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988). “By virtue of the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies.” Id.

[3] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters Art. 1, Entered into Force for the United States, Feb. 10, 1969, 20 U.S.T. 361, 658 U.N.T.S. 163

[4] Id.

[5] Kumar v. Republic of Sudan, 880 F. 3d 144 – Court of Appeals, 4th Circuit 2018.

[6] 28 USC 1608 (a)(1-4). Technically, the FSIA is a hierarchical statute. Accordingly, service is to be attempted via (a)(1) prior any attempt via (a)(2); etc. However, for the point made in this communication, this level of detail is unimportant.

[7] This case was based on a consultation with a client.

[8] The plaintiff was silent as to whether the pleading were served along with the Hague Request forms (USM-94).

[9] ABA: Model Rules for Professional Conduct. Rule 1.3: Diligence (August 16, 2018); available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence/

[10] Id. Rule 1.1 Competence (August 16, 2018); available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/

[11] In addition to being hierarchical, (see note 6), the FSIA also treats service upon the sovereign and sovereign’s agents and instrumentalities differently.

[12] Whether legal malpractice occurred is beyond the scope of this communication. The sole point here is even if an attorney were to prevail in a legal malpractice action, the cost of time and money to defend the action and deal with the insurer could be significant.


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