Internet Lawyer Blog
International service of process involves the formal service of legal documents on foreign litigants. In general, legal documents should be served on the interested parties once the lawsuit is filed with the clerk. The documents usually include a summons and complaint. In most cases, the plaintiff personally serves the defendant with the legal documents. In some cases, the plaintiff can serve the legal documents by substituted service.
Now, for international service of process, the parties should refer to international treaties which outline the delivery parameters of legal documents to foreign litigants. The United States is a signatory to the Hague Service Convention and Inter-American Convention on Letters Rogatory.
The Hague Service Convention allows service of process on parties who reside in countries which are also signatories to this international treaty. In 1969, it became formally effective in the United States. The United States government undertook a reciprocal treaty obligation toward those countries by joining the convention which have also adopted it, to serve in the United States documents issued by foreign judicial authorities. It applies only to foreign documents which are related to civil cases and does not apply to documents related to criminal proceedings. The President has designated the Department of Justice as a “central authority” for these proceedings. The Assistant Attorney General, under 28 C.F.R. 0.49, who is in charge of the Civil Division is able to direct and supervise the functions of the central authority. Moreover, under 28 U.S.C. 1781, the Department of State is authorized to receive requests for service of foreign judicial documents from foreign courts and to transfer them to the proper agency.
On January 30, 1975, the Inter-American Convention on Letters Rogatory was adopted at Panama City, Panama along with the additional Protocol to the Convention. This international treaty applies to letters rogatory that are issued along with civil and commercial proceedings. The convention comprises of twenty-five articles that outline the procedures. Please refer to https://www.oas.org/juridico/english/treaties/b-36.html. The additional protocol to the Inter-American Convention on Letters Rogatory comprises of twelve articles and can be found at https://www.oas.org/juridico/english/treaties/b-46.html.
There may be other options to provide service of process to foreign litigants. In some cases, under FRCP 4(f)(2)(C), the courts are inclined to grant permission for service of process by registered or certified mail which require a signed receipt. Moreover, the courts have granted service by other means (e.g., email) that are not prohibited by international agreement.
Federal Rule of Civil Procedure 4(f)(3) allows the courts to authorize service of process to be made on an individual in a foreign country by any means not prohibited by international agreement. Rio Props. v. Rio Int’l Interlink (9th Cir. 2002) 284 F.3d 1007. The plain language of Rule 4, subsection (f)(3), reflects that the decision to issue an order allowing an alternate means of service lies within the sole discretion of the courts. Rule 4 does not require that a party attempt service of process by those methods enumerated in Rule 4(f)(2), including by diplomatic channels and letters rogatory, before petitioning the court for alternative relief under Rule 4(f)(3). Indeed, alternative service under Rule 4, subsection (f)(3) is available “without first attempting service by other means.” As the Ninth Circuit explained in Rio Properties: “By all indications, court-directed service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 4(f)(2). Indeed, Rule 4(f)(3) is one of three separately numbered subsections in Rule 4(f), and each subsection is separated from the one previous merely by the simple conjunction or. Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands independently, on equal footing. Moreover, no language in Rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means.”
Thus, examining the language and structure of Rule 4(f) and the accompanying advisory committee notes, we are left with the inevitable conclusion that service of process under Rule 4(f)(3) is neither a “last resort” nor “extraordinary relief.” It is merely one means among several, which enables service of process on an international defendant. See Rio Properties, 284 F.3d, at 1114. The method of service of process “must also comport with constitutional notions of due process.” To meet this requirement, the method of service crafted by the district court must be reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Our international internet lawyers have been prosecuting and defending legal actions in state and federal courts for several years. Our law firm is ready to assist its clients in matters related to internet, technology, cybersecurity, and privacy matters. Please contact our law firm to speak with an international internet attorney at your earliest convenience.