Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. It is not essential to making effective service upon defendants outside the U.S. that a treaty authorize the service. See Blackmer v. United States, 284 U.S. 421 (1931); Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004); see, e.g., OS Recovery, Inc. v. One Groupe Int’l, Inc., 2005 WL 1744986, at *1 (S.D.N.Y. July 26, 2005) (direct service by mail on party in Australia found effective, where Australia had not ratified the Hague Convention and Australian law did not prohibit service by mail). Rule 4(f) of the Federal Rules of Civil Procedure provides a comprehensive framework for service of process on persons outside the U.S., independent of the provisions set forth in the service Conventions.
  2. Rule 4(f) incorporates the following methods of service on individuals in foreign countries:
    1. Any and all internationally agreed means of service reasonably calculated to give notice
    2. Where there is no internationally agreed means of service, service may be effected as follows:
      1. in a manner prescribed by the law of the destination state, see Fed. R. Civ. P 4(f)(2)(A);
      2. as directed by the destination state in response to a letter rogatory or letter of request, see Fed. R. Civ. P 4(f)(2)(B);
      3. unless prohibited by law, by personal delivery or by any form of mail addressed by the clerk of the court and requiring a signed receipt, see Fed. R. Civ. P 4(f)(2)(C), 4(l);

        Practice Tip: Many nations regard the service of process as the official act of a foreign sovereign that ought not occur within their borders in the absence of a treaty – especially when service is attempted by foreign nationals or officials. Personal service of U.S. process outside the U.S. is less likely to meet with objections by the destination state if local agents are retained to make service on behalf of the U.S. litigant.

      4. by any other means, not prohibited by international agreement, as may be directed by a U.S. Court. See Fed. R. Civ. P 4(f)(3).
        1. U.S. courts have read this provision flexibly, consistent with the constitutional requirements of due process. For example, in Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), the Ninth Circuit held that the district court did not abuse its discretion by authorizing plaintiff to serve an Internet business outside the U.S. by email. Since the defendant did not list a physical address, but chose to operate by email, the court found that notice by email was was reasonably calculated to give notice of the action and an opportunity to be heard.
        2. Practice Tip: Rule 4(f)(3) provides the court and the litigants with broad flexibility in obtaining service in unanticipated or exigent circumstances where a service Convention does not offer an appropriate or timely means of service.
    3. Aspects of service not addressed in Rule 4(f) are resolved by reference to the other parts of Rule 4. For example, proof of service outside the U.S. remains governed by Rule 4(l)’s provisions.
    4. A foreign corporation may be served in a judicial district in the U.S. pursuant to Rule 4(h) under the following circumstances:
      1. Delivering papers to an officer, managing agent, or other agent authorized to receive service;
      2. Pursuant to the law of the state in which the District Court is located, or in which service is effected, if applicable.

        Practice Tip: Under the laws of some states, a litigant may serve a non-U.S. through its U.S. subsidiary – typically because the subsidiary has acted as the parent’s agent, or because a state statute makes the U.S. subsidiary an involuntary agent of the parent for service of process. The U.S. Supreme Court has held that such service not implicate the Hague Convention’s requirements, because service is complete upon delivery of the summons and complaint to the U.S. subsidiary, and therefore does not present an “occasion to transmit a judicial or extrajudicial document for service abroad.” See Hague Convention Art. 1; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. at 707-08.

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