22Oct
By: Tom On: October 22, 2018 In: International Litigation, Service of Process Comments: 0
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For most countries in North America and Europe, as well as Australia and many countries in Asia, international service of process is effected pursuant to the Hague Service Convention.  The US Supreme Court has held that where the Hague Convention is in effect, litigants must use one of its channels to effect service of process. See Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 108 S. Ct. 2104 (1988).

However, the scope of the Convention limits the Convention’s applicability. Specifically, the “Convention shall not apply where the address of the person to be served with the document is not known.” (Id. at Article 1; see also S.E.C. v. Lines, No. 07 Civ. 11387(DLC), 2009 WL 3179503, at *3 (S.D.N.Y. Oct. 2, 2009) “As Article I of the Hague Convention quite understandably recognizes, it shall not apply where the address of the person to be served with the document is not known” (internal quotation marks omitted)).

Therefore, in order to serve process it is vital that you have accurate and up-to-date address information. In the best of all possible worlds, a plaintiff will have a document authored by the defendant containing the defendant’s contact information. But often this is not the case. In such situations where address information is not known, you will need to perform address research. What type and how much depends on what information is currently available.

In Situations Where Current Information is Available

In situations where there is good current information on a defendant (e.g., some combination of name, city, date of birth, driver’s license number), address research to verify the overseas defendant’s address for service of process will commonly cost $500-$1000 USD. Of course, this is a ballpark figure and sometimes the cost of address research may be higher or lower than the above range. A general rule, the more current the information available on the defendant, the lower the cost of address research.

However, when a litigant wants to obtain an address to serve process on a defendant outside of the United States, the research can be quite complicated. For example, one of our clients needed an address for a defendant involved in an automobile accident who was subsequently deported back to his home country. The only information that the client had on the defendant was his full name (which was fairly common), his date of birth, and the Hague Service Convention country’s region where the defendant was deported. This was clearly insufficient information to serve process.

So, how much due diligence must the client engage in before filing a motion for service by other means?

In Situations Where Current Information is Unknown

Many courts have held that an address is “not known” if the plaintiff exercised reasonable diligence in attempting to discover a physical address for service of process and was unsuccessful in doing so.

(See Advance Access Content System v. Shen d/b/a DVDF AB, 14-CV-1112 (VSB), (S.D. NY. Sept. 30, 2018); See also Philip Morris USA Inc. v. Veles Ltd., No. 06 CV 2988(GBD), 2007 WL 725412, at *3 (S.D.N.Y. Mar. 12, 2007) (granting plaintiff’s request to allow service by email after an investigation did not uncover valid physical addresses for service of process); Prediction Co. v. Rajgarhia, No. 09 Civ. 7459(SAS), 2010 WL 1050307, at *2 (S.D.N.Y. Mar. 22, 2010) (granting plaintiff’s request to serve Indian defendant through United States-based counsel where plaintiff had “actively, though unsuccessfully, attempted to obtain [Indian defendant’s] address in a variety of ways” in order to serve under the Hague Convention).)

It is important to note that if a plaintiff is required to serve process pursuant to the Convention, the address obtained from address research must be a physical address. Microsoft Corp. v. Does, No. 12-CV-1335 (SJ)(RLM), 2012 WL 5497946, at *2 (E.D.N.Y. Nov. 13, 2012).

With these rules in mind, let’s return to the case of serving the deported defendant.

What Constitutes Reasonable Address Research?

As the deportation had occurred a year earlier, a reasonable search would consist of:

  • a search for new voter registration
  • a search for new applications for drivers licenses

The cost of such searches would certainly fall within the above listed price range.

If these searches produced a “hit” for the defendant’s name, a further search would be required to verify that the name returned did indeed belong to the defendant. The cost of this additional (verification) search may bring the total price of address research to over $1000 USD, but both the three-search-strategy and the price of these searches would be reasonable given the information on hand at the beginning of the search for the defendant’s address.

But now suppose that a search for new voters and drivers licenses did not return any hits for the defendant’s name. Should further research be conducted?

When this very situation was discussed with private investigators, they asserted that further research is always possible. For example, in this case because the defendant left a wife behind in the US, the defendant’s family members could be interviewed for leads. Such address research for a defendant is labor and cost intensive; and if a lead is unearthed, it is likely to lead to further labor and cost intensive investigations. So, here it would seem that we have entered into a world of unreasonable due diligence to obtain an address for international service of process.

Of course, the only opinion that matters is the judge that hears the motion for service by other means (or a subsequent motion to quash non-Hague Convention service). In a motion to grant service by other means the judge will usually have “sound discretion” to order service by other means. Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y. 2010).

If you find yourself needing to preform address research in order to serve process to a defendant located abroad, contact Legal Language Services. Our experienced attorneys and legal professionals will be able to assist you in effectively serving process abroad.

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