Serving Them Right
When Taking on International Defendants, Expect Challenges, Even Complications
Posted Jun 28, 2005 10:36 AM CDT
By Arin Greenwood
If the Massachusetts attorney general was looking for an uncomplicated defendant to serve, this wasn’t it. The cigarette company wasn’t just flouting the state’s tobacco laws, it was doing so from a location deep within the Philippine jungle.
But the AG’s Consumer Protection and Antitrust Division, which handles tobacco compliance, wanted to go after this wayward company anyway. So the question fell to then-Assistant Attorney General Timothy E. Moran: How do you serve a company hidden in the Philippine jungle? The answer, he discovered, was with a machete.
Moran hired an international process server to find the company and develop a strategy to effect service of process. Moran’s account of what happened next is anything but a typical day at the office. First, he says, the process server hacked her way through the jungle to get to the company’s walled compound. She then launched a stakeout to get her paperwork past a legion of armed guards.
When finally she saw a board member driving out of the compound with an open car window, she leaped into action. The moment the car stopped, she stuck a set of papers under the windshield wipers and tossed a second set through the open window. The tossed papers touched the board member, and service was effected under both U.S. and Philippine law.
Jungle stakeouts aside, overseas service is “inherently complicated without being very interesting,” says Dan Swanson, a Los Angeles antitrust lawyer. And overseas service can be even more complicated, he says, because service has to be made in the right way, with the right papers and in the right languages.
Two international conventions provide guidance on the mechanisms of overseas service of process: the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters and the Inter-American Service Convention on Letters Rogatory and Additional Protocol.
But these treaties are just a starting point. “A careful reading of the Federal Rules of Civil Procedure and related U.S. case law is also essential,” he says. “International service of process is one area of law where generalizations are potentially dangerous.”
A detailed analysis is crucial if the party to be served is located in a country that isn’t a signatory to either treaty-- especially, Swanson says, “if the goal is to maximize the odds of foreign enforcement of any judgment.”
A variety of options exist, including the commonly used letters rogatory, which are requests for service or other legal action from a U.S. court to a judicial authority in another country that are generally used in countries that aren’t signatories to either convention. They’re effective but can be very slow--taking up to a year or more--says Christine Anderson, an overseas process server with Ace International Services in East Greenwich, R.I. The delay, she notes, can often be explained by looking to those responsible for serving the papers--government workers who definitely aren’t pulling overtime.
Which is often why lawyers turn to professionals like Anderson. They can also hire private investigators to track people down, translate documents and determine the best manner of service. And service itself can be more timely and efficient because the process server’s livelihood depends on it. Regardless, says Anderson, “attorneys are sometimes surprised at how expensive it can be.” If service of process in the U.S. can cost as little as $75, “it’s maybe $1,200 in another country,” she explains.
Still, sometimes even the best efforts aren’t successful. Swanson once tried to sue a German company using a letter rogatory, but service came too slowly. “By the time the German government got around to serving it,” he recalls, “the defendant had absconded to Moscow, and we had to drop the case.”