By: Tom On: March 31, 2020 In: International Service of Process Comments: 0
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The answer is “yes” and “no.”

SCOTUS has mandated that for service of process in countries where the Hague Service Convention is in force, (with the exception of whole-owned US subsidiaries), foreign defendants must be served via the Convention.[1]  Viewed through this lens, the answer is: “no,” you cannot serve a foreign defendant by serving the defendant’s US attorney.

However, as the opinion in US Securities and Exchange Commission v. De Nicolas Gutierrez[2] makes clear, there are in fact certain situations where service can be enacted via service on a foreign defendant’s US attorney.

The Hague Convention Does Not Prohibit Service on a Foreign Defendant through US Counsel

In Gutierrez, the Securities and Exchange Commission (“SEC”) had unsuccessfully attempted service of process upon several Mexican defendants. The SEC therefore filed a Motion for Leave to Effect Alternative Service.

Alternative service is “neither a `last resort’ nor an `extraordinary relief.’ It is merely one means among several which enables service of process on an international defendant.”[3]

The Court began its opinion by observing that

Courts have held that the Hague Convention does not prohibit service on a foreign Defendant through counsel based in the United States. Specifically, courts have allowed service “upon a foreign defendant’s United States-based counsel” to prevent further delays in litigation.

In fact “[s]ervice upon a foreign defendant’s United States-based counsel is a common form of service ordered under Rule 4(f)(3)” (citing cases). Whether to authorize service under Rule 4(f)(3) is left to the “sound discretion” of the trial court, when it determines that the “particularities and necessities of a given case” require alternative service.[4]

US Attorneys Do Not Require Prior Authorization to be Served

Having established that the Hague Convention did not prohibit service via US counsel, the next point of contention regarded whether said counsel needs to be authorized to accept service. The defendants’ US attorneys alleged that they were not authorized to accept or waive service on behalf of their clients.[5]

The Court, however, found this argument to be “unavailing,” because

Due process does not require that individuals served on behalf of a foreign defendant have represented them in the past or have been authorized to accept service. Rather, “[t]he reasonableness and hence the constitutional validity of any chosen method may be dependent on the ground that it is in itself reasonably certain to inform those affected.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315 (1950).

It appears that both [the US attorney and the Defendant] have been in communication with their US-based counsel, and that service on their US-based counsel will provide the requisite notice of the pending action and an opportunity to respond.

Accordingly, the Court ordered US counsel served on behalf of the Mexican defendant.

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 1-800-755-5775 or simply fill out our free quote form.

[1] Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).
[2] Case No. 17cv2086-JAH (JLB) (SD CA 2020).
[3] Fed. R. Civ. P 4(f)(3); Rio Properties v. Riol Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002).
[4] Citations omitted.
[5] One of the attorney also stated that he no longer represented the defendant. The court accepted this reason and did not further discuss service upon this attorney. The court did allow this defendant, who appeared not to have US counsel, to be served via email –even while knowing that Mexico prohibits Article 10(a) postal service. Accordingly, service upon this defendant may not survive an appeal. See LLS: When a Country Objects to Postal Service, Does That Include Email Service?

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