The Lawletter Vol 35 No 9, June 17, 2011
In the global marketplace of today, the need to secure personal jurisdiction over a foreign national often arises in disputes of either a personal or a business nature. The most commonly used method of obtaining service on a party outside of the United States is through the Hague Convention on International Service. More than 70 nations have ratified the Hague Convention, including the United States, most Western European countries, China, the Russian Federation, Mexico, and Argentina.
If the country wherein the foreign defendant is located is a signatory to the Hague Convention, service must be accomplished in accordance with the requirements of the Convention. Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 700 (1988). Generally speaking, the Hague Convention authorizes service through the state's designated Central Authority, via international registered mail, or by directly serving the party through an agent in the destination state. However, some countries, such as China and Mexico, have specifically objected to certain generally authorized forms of service. In such cases, service must be accomplished in a manner not objected to by the signatory country. In any event, the surest and most effective way to obtain service over a foreign defendant is through the designated Central Authority. See, e.g., Intercont'l Indus. Corp. v. Luo, No. CV 10-4174-JST EX, 2011 WL 221880, at *2 (C.D. Cal. Jan. 20, 2011); Xyrous Commc'ns, LLC v. Bulg. Telecommc'ns Co. AD, No. 1:09-cv-396, 2009 WL 2877084, at *10 (E.D. Va. Sept. 4, 2009) (slip copy).
"Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person." In re Alyssa F., 6 Cal. Rptr. 3d 1, 4 (Ct. App. 2003). Notably, however, the provisions of the Hague Convention do not apply if the address of the person to be served is unknown. Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, art. 1.
If the foreign defendant is an individual who is present in a country that has not ratified the Hague Convention, then service of process may be obtained in accordance with the methods authorized by Rule 4(f) of the Federal Rules of Civil Procedure, which authorizes service "by any means not prohibited by international agreement, as may be directed by a U.S. court." Fed. R. Civ. P. 4(f)(3). This Rule confers broad flexibility upon the court and the litigants to obtain service upon the foreign defendant by any reasonable means available that comport with the constitutional notion of due process.
Court-ordered service under Rule 4(f)(3) is also valid upon an individual foreign defendant who is present in a country that has ratified the Hague Convention if the address of that foreign defendant is unknown. See United States v. Distribuidora Batiz CGH, S.A. De C.V., No. 07cv370-WQH-JMA, 2011 WL 1561086, at *5 (S.D. Cal. Apr. 21, 2011). In other words, in cases where the plaintiff is unaware of the foreign defendant's address, the court has the discretion to validate service by any means that comport with constitutional notions of due process. See id.
In cases where a U.S. plaintiff is attempting to serve a foreign corporation located in a nonsignatory country, service of process may be effected in accordance with Rule 4(h). In some states, however, this requirement may be bypassed if the foreign corporation has a U.S. subsidiary. If the U.S. subsidiary may be classified as the involuntary agent of the foreign corporation, such service is accomplished within U.S. borders and therefore does not implicate the requirements of the Hague Convention. See Volkswagenwerk AG, 486 U.S. at 707-08.