Rule 4(f) of the Federal Rules of Civil Procedure establishes three mechanisms for serving an individual in a foreign country. First, service may be had "by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention." Fed. R. Civ. P. 4(f)(1). The Hague Convention is the standard method for serving an individual in a foreign country, but it does not preempt all other methods of service on individuals in another signatory nation. See 4B Charles A. Wright et al., Federal Practice and Procedure § 1134 (4th ed. & Westlaw updated through Apr. 2017). Rather, all three methods of service under Rule 4(f) are "on equal footing," and a plaintiff need not attempt service by any one method before resorting to another. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002). Second, if there is no internationally agreed means, or if an international agreement allows but does not specify other means, then service may be had "by a method that is reasonably calculated to give notice," including service "as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction," or by delivering a copy of the summons and complaint to the individual personally, unless that method is prohibited by the foreign country's law. Fed. R. Civ. P. 4(f)(2)(A), (C). Third, an individual may be served in a foreign country "by other means not prohibited by international agreement, as the court orders." Id. R. 4(f)(3).Read More
"Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.
In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the paper to . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party).Read More