By: Tom On: July 20, 2020 In: International Service of Process Comments: 0
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Two years ago, in the wake of Water Splash v. Menon, [1] which defined when international mail service was proper under the Hague Service Convention, we warned that – when it comes to mail service — the devil is in the details.

We concluded that while international service of process by mail,

(as opposed to service under Articles 5 and 10(b) of the Hague Service Convention) may sound like a bargain in terms of both time and money… when it comes time for the plaintiff to prove that [international service of process] by mail was proper, the plaintiff is likely to find that they have entered into a Faustian bargain.

The 2020 case of Densys Ltd. v. 3Shape Trios A/S[2] provides proof that our caveat from two years ago still holds true.

Grounds for Challenging Mail Service

Densys is a patent infringement case. This is important because the translation of the pleading can be expensive, and mail service does not necessarily obviate the need for translation since the defendant may have a due process right to be served with documents in a language that they understand.

So, when Hague mail service (pursuant to Article 10(a)) is effected, if documents to be served are entirely in English, foreign defendants may be able to challenge service.

This would then force the plaintiff to bear the burden of proof in order to show that the defendant speaks or does business in English.

Does Denmark Permit Mail Service?

In Densyst, service upon the Danish defendant was effected by mail service that was dispatched from the Clerk of the Court. This is an important point in federal courts because service by certified mail or FedEx is not proper without such service being routed through the Clerk’s office.[3]

Still, in this case, the Defendant challenged service arguing that

[c]ourts cannot exercise jurisdiction over an improperly served defendant. Accordingly, Federal Rule of Civil Procedure 12(b)(5) authorizes dismissal of an action for insufficient service of process. Once a defendant has challenged the validity of service, the plaintiff bears the burden of establishing the validity of service.[4]

At issue here was whether Denmark allowed mail service from the US.[5] In point of fact, (not discussed by the court), Denmark explicitly states that it has “[n]o opposition” to mail service under the Hague Convention.[6]

But, Denmark added the following qualifying statement:

As for Article 10(a) Denmark has not declared that it objects to this method of transmission. However, this does not imply that such method is valid service in Denmark. The Danish courts have not yet had the opportunity to rule on the matter.

Plaintiff Argues Mail Service Not Expressly Prohibited

The court began it opinion by stating that, under the Hague Service Convention, mail service to an overseas country is proper only if “the receiving state has not objected to service by mail.”

Both parties conceded that “Denmark has not formally objected to service by mail under Art. 10(a) of the Hague Service Convention.” According to the court, the “majority view of this rule” holds “that a method of service is not “prohibited” unless it is expressly prohibited by a foreign country’s laws.”

The court clearly seems to believe that Denmark’s reservation to Article 10(a) service was that it was silent on whether 10(a) service was permitted or opposed. Had the plaintiff’s attorney checked the Hague Convention’s webpage and cited that Denmark had no opposition to 10(a) mail service, there would have been no need for further discussion.

However, not having checked the Hague Convention’s webpage, the plaintiff argued that service by mail is not expressly prohibited by Danish law:

Plaintiff relies on a signed Declaration from an experienced Danish lawyer and lecturer providing English translations of applicable Danish statutes. Additionally, Defendants have provided a certified translation of a ruling from the Danish Maritime and Commercial Court. In Denmark, the general rules for service are set out in Chapter 17 of the Administration of Justice Act, Sections 155 to 157a. Section 155 provides that service may be effected “by forwarding a document to the person concerned by letter as recorded delivery (service by post).” Section 157a further provides that service by letter to a corporation “may also be effected to employees… provided that service is made at the place where the [corporation] operates its business.” A facial reading of these statutes indicates that service by mail is generally not prohibited under Danish law. Thus, Plaintiff’s service by mail appears to be proper.[7]

Accordingly, the court held that the plaintiff had met their burden of proof by demonstrating how “mail  [service] was not expressly prohibited under Danish law” and therefore service was proper under Water Splash.

Plaintiff Wins But at a Heavy Toll

To our eyes, the plaintiff achieved only a Pyrrhic victory. Had the plaintiff served the defendant through the Danish Central Authority, service would have been completed almost as fast as service by mail.

Sure, Central Authority service would have been “front-end loaded” with translation costs. But mail service is “back-end loaded” with the following:

  • Opportunity costs: Regardless of whether the plaintiff’s attorney took this case on commission or at an hourly rate, if service had been through the Central Authority all the preparation for this hearing could have been avoided.
  • Expert witness fees.
  • Translation costs: The plaintiff still had to cover the cost to translate the various expert witness reports and statutes.

In additional to these costs, there is also a back-end risk: someday in the future, a Danish court may not recognize and enforce this judgment.

Would a Danish Court Reach the Same Conclusion?

In this opinion, we see a US court reach a logical conclusion with respect to Danish law. But would a Danish court applying its own calculus reach the same conclusion as the US court?

In this case, based on Denmark’s qualifying statement to its “no opposition” to mail service, it seems likely a Danish court would hold that mail service as described here was not proper service.

But more generally, one of the first steps in having a foreign judgment recognized anywhere in the world, is to address the issue of whether service of process was proper. When service is by mail this is always an unknown unless the destination country states that it has “no opposition, period” (i.e., that it’s no opposition is not further qualified).

On the other hand, when service of process is via Central Authority (or a Letter Rogatory in the case of non-Hague countries) service will virtually always be recognized as proper.

How LLS Can Help

International service of process is complex and should never be attempted without the help of experienced professionals. At LLS, we have more than 35 years of experience effecting service in 90+ countries. We can advise you on exactly how your Hague Service Request should be prepared, how it will travel through the foreign judicial system, and what potential pitfalls it may encounter along the way. Additionally, if Hague service is not an option, our staff attorneys can help you explore other options and determine the best method for service.

Contact LLS today to learn more about how we can assist you.

Call 1-800-788-0450 or simply fill out our free quote form.

Notes
[1] 137 S. Ct. 1504, 1513 (2017).
[2] Civil No. 6-19-CV-00680-ADA (WD TX 2020).
[3] See Brockmeyer v May, 383 F.3d 798 (9th Cir. 2004).
[4] Citations omitted.
[5] See Water Splash, 137 S. Ct. at 1504.
[6] HCCH: Denmark – Central Authority & practical information https://www.hcch.net/en/states/authorities/details3/?aid=403 (14 July 20). This page was last update 7 March 14. Id.
[7] Citations omitted.

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