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Beyond the Hague Convention: Other Methods Of Serving Process On Foreign DefendantsJeremy N. Nash

Defendants located outside the United States are often named in securities and other types of class actions, which raises a sometimes confounding question: How to effect service of process?

The minds of many attorneys turn immediately to the Hague Convention, which is a multilateral treaty adopted in The Hague, The Netherlands, on November 15, 1965 by member states of the Hague Conference on Private International Law. It came into existence to give litigants a reliable and efficient means of serving the documents on parties living, operating, or based in another country.

It has not entirely achieved its laudable goals. Service of process pursuant to the Hague Convention is oftentimes an expensive and protracted affair, taking years in some cases to conclude, depending on the country. There are, fortunately, several alternatives to the Hague Convention.

Federal Rule of Civil Procedure 4(f) addresses serving defendants in a foreign country. It provides that, “[u]nless federal law provides otherwise, an individual . . . may be served at a place not within any judicial district of the United States” in one of three ways.

The first is “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 second applies where “there is no internationally agreed means, or if an international agreement allows but does not specify other means[.]” Fed. R. Civ. P. 4(f)(2). It allows service “by a method that is reasonably calculated to give notice . . . as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction,” or “as the foreign authority directs in response to a letter rogatory or letter of request[.]” Fed. R. Civ. P. 4(f)(2)(A)-(B). “[U]nless prohibited by the foreign country's law,” it also allows service by “delivering a copy of the summons and of the complaint to the individual personally,” or by “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt[.]” Fed. R. Civ. P. 4(f)(2)(C)(i)-(ii).

The third option is simply “by other means not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3).

Though service via the Hague Convention is listed first, it is well-established that there is no hierarchy among the various subsections of Rule 4(f). See, e.g., Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (a hierarchy of preferred methods of service of process “is [not] found in the Rule’s text, implied by its structure, or even hinted at in the advisory committee notes”). As such, there is no categorical bar to proceeding with service on an international defendant pursuant to, for example, Rule 4(f)(3), without first exhausting other avenues of service.

Given the expense and delays that normally accompany service of process through the Hague Convention, and the possibility that service may still not be effected at the conclusion of that process, it is important to consider and vet these alternatives methods of service. Doing so could avoid potentially years of delay in your case.