12Jun
By: Tom On: June 12, 2019 In: International Service of Process Comments: 0
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The time to complete international service of process varies depending on the destination country and the method of service used.

All countries that are signatories to the Hague Service Convention (HSC) must provide service via their Central Authority,[1] although some HSC countries allow service by other means as well.[2] International service of process in non-HSC countries is effected either via a Letter Rogatory[3] or via an agent.

Time Restrictions Do Not Apply

In the very best of cases, service can be completed within two to four weeks.[4] But at the other end of the spectrum, international service of process may take two or more years to complete — as is currently the case in China. More typically it requires months to complete.

This delay sometimes worries attorneys who are accustomed to completing domestic service of process under strict time constraints. But such time restrictions are not applicable to international service.

In the federal courts, the normal 90-day time limit to effect service “does not apply to service in a foreign country.”[5] In state courts, the rules vary from state-to-state, but in general any time limitation to effect service is tolled if the attorney has done due diligence to effect service within the prescribed time limit.[6] The courts understand that international service of process takes time. Indeed in a 2019 Ohio district court case — Pedersen v. Dreams Come True Aviation[7] the court did not even bat an eye when informed that service would require a year or more to complete.

How Courts Handle International Service

Pedersen v. Dreams Come True Aviation is a joinder case. In this case, Pedersen had obtained a judgment for $3.7M + 6% interest against Evektor-Aerotechnik AS (“Evektor”), which is a company based out of the Czech Republic. Evektor had not satisfied any portion of the judgment, nor does Evektor have property in the US.

Rather than taking the $3.7M judgement to the Czech Republic to have it recognized and enforced, Pedersen filed suit against DCT, which serves as “Evektor’s North American Parts Dealer and Midwest USA Aircraft Sales Representative,” as well as “Evektor Technical Support for Light Sport maintenance facilities across the United States and Canada.” Pedersen’s goal was to obtain an order that directed DCT to transmit the money to be paid to Evektor to Pedersen.

DCT moved to dismiss Pedersen’s complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(7) for failure to join an indispensable party under Rule 19.

The Court Begins its Opinion by Reviewing Rule 19

Rule 19

requires the Court to engage in a three-step inquiry when determining whether a case should continue in the absence of a particular party. First, the Court must determine if the absent party is a “necessary” party. Id. The absent party qualifies as a necessary party if either: (1) complete relief cannot be accorded among the current parties; or (2) a ruling on the complaint in the party’s absence may impair that party’s ability to protect its interests or subject current parties to a substantial risk of inconsistent obligations. If the Court decides the absent party is not a necessary party, neither joinder nor further analysis is required. However, if the absent party is deemed necessary, the Court must proceed to step two—determining whether joinder is feasible. Id. Rule 19 requires joinder where the necessary absent party is “subject to service of process and will not deprive the court of subject-matter jurisdiction.” In addition, Rule 19 notes that joinder is not feasible where “a joined party objects to venue and the joinder would make venue improper.” Third, if the Court determines that joinder is not feasible, the Court must decide whether: (1) the case should proceed without the necessary party, or (2) the case should be dismissed because the necessary party is “indispensable” under Rule 19(b). Rule 19(b) instructs courts to weigh this question in “equity and good conscience,” with four factors in mind: (1) the extent to which a judgment rendered in the party’s absence might be prejudicial to that party or existing parties; (2) the extent to which the court may lessen or avoid prejudice; (3) whether the court can render adequate judgment in the party’s absence; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Finally, the Sixth Circuit has held that Rule 19 requires a pragmatic analysis. “Simply because some forms of relief might not be available due to the absence of certain parties, the entire suit should not be dismissed if meaningful relief can still be accorded.”[8]

The Court Denies DCT’s Motion to Dismiss, Orders Pedersen to Serve Evektor

The case at hand concerns Evektor’s business interests. So it is axiomatic that Evektor is a necessary party. Accordingly, there is no need in this case to review the court’s logic in reaching this determination.  Instead, we turn to the second key issue: whether it is possible to serve Evektor.

The short answer is, of course, yes, service of Evektor is possible — after all, if Evektor could not be served, Pedersen would not be a judgment creditor.

Pedersen’s position was

that if Evektor were made a party to this action, “a separate summons would have to be issued—and service of process effectuated under the Hague Convention for the Service Abroad of Judicial Documents.” Mr. Pedersen argued [that] joining Evektor would substantially delay the proceedings because “[t]he last time the Plaintiff served Evektor-Aerotechnik it took over a year for the Czech Ministry of Justice to effectuate service[9]—exclusive of any additional time required for translation.”[10]

The court then observed that Pedersen

does not dispute that the Czech Republic is a participating nation in the Hague Service Convention. In fact, Mr. Pedersen notes that the Czech Ministry of Justice served Evektor in his previous suit. Moreover, Mr. Pedersen acknowledges “there is no dispute that Evektor-Aerotechnik can be served under the Hague Convention for the Service Abroad of Judicial Documents—so this action [does] not need to be dismissed.”[11]

Finally, the court stated that because Evektor can be feasibly joined, the Court need not address whether it is an indispensable party pursuant to Rule 19(b).  DCT’s motion to dismiss was denied and Pedersen was order to serve Evektor.

Notes

[1] Id. at Article 2-5.
[2] Id. at Article 10
[3] Service by Letter Rogatory is used here broadly to include court-to-court Letter Rogatory service and service pursuant the INTER-AMERICAN CONVENTION ON LETTERS ROGATORY. This is the method of service to use when the defendant resides in a non-HSC country and there is a possibility that any judgement may need to be enforced in that country.
[4] Examples of this level of efficiency are found in agent / solicitor service in Canada and United Kingdom.
[5] FRCP 4(m).
[6] As used here, due diligence generally means that the attorney has provided a vendor, like Legal Language Services, with everything it needs to effect international service of process.
[7] Case No. 2:18-cv-1323, Dist. Court, SD Ohio 2019 (May 1, 2019).
[8] Citations omitted.
[9] While this statement could be true, service in the Czech Republic is usually completed in 3-5 months after the request for service is received.
[10] Citations omitted.
[11] Citations omitted.


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