BY ANTHONY DE YURRE, ESQ – International demographics lead to international defendants. Unfortunately, service of process on international defendants creates extensive motion practice, including evidentiary hearings. In order to avoid delay and expense, service of process regarding international defendants must be an integral part of early litigation strategy.
Both Federal and Florida law provide the same method of service for defendants abroad. Fed. R. Civ. P. 4(f) provides for service outside the United States, “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Additionally, Fla. Stat. §48.193(3) provides that, “[S]ervice of process upon any person subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in § 48.194. The service shall have the same effect as if it had been personally served within this state.” Fla. Stat. §48.194(1), provides, “[S]ervice of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.”
The Hague Convention provides the appropriate channels for transmitting a document from the United States for service in another country. The Convention creates a uniform framework for service, but it is differently applied by each of the 70 party countries. Further, while the Convention states that 66% of service requests are served within 60-days, in practice service times can exceed 120-days depending on the destination country.
The Convention provides for three methods of service: (i) the destination country’s “Central Authority”; (ii) international mail; or (iii) direct service through an agent of the destination country’s court. Every party to the Convention accepts service via their respective Central Authority, but not all accept service via mail or agent. In all cases, the destination country’s “Model Form” for Convention service must be completed and the documents to be served must be translated into the language of the destination country. Naturally, defendants may at anytime accept service voluntarily. Note though, pursuant to Fed. R. Civ. Pro. 4(d), voluntary acceptance grants 90 days to file a response.
Article 2 of the Convention provides for service through the destination country’s Central Authority. Each signatory is required to designate a Central Authority. The Central Authority itself serves the document or uses the appropriate agency. Service via the Central Authority takes the most time, but it is accepted by all party countries and raises the least challenges in U.S. Court.
Article 10(a) of the Convention allows for direct service by “postal channels,” provided the destination country does not object. Service through postal channels has been the subject of some debate, but most Florida courts accept the method. As noted in Tracfone Wireless, Inc. v. Does 1-5, XYZ Companies 1-5, 2011 WL 4711458 (S.D. Fla. October 4, 2011), when service must be done pursuant to the Hague Service Convention, the majority of courts in the Southern District of Florida have found that Article 10(a) permits service by international express mail.
Article 10(b) of the Convention allows for direct service through judicial officers in the destination country, provided again the destination country does not object. This method essentially involves service as if a plaintiff was filing a domestic suit in the destination country. The main challenge of this method is finding reputable local counsel to assist in facilitation. Also, the local service procedure of the destination country may differ from those of U.S. Courts. While the Convention, Federal law or Florida law state no additional conditions for judicial officer service, practitioners will occasionally use the differences to raise questions and doubts in an attempt to quash service.
No single best Convention method exists. While Central Authority service may take longer, it is the surest method. If delay is the concern, then mail or local agent service must be considered, but either may lead to subsequent attempts to quash service. Ultimately, the circumstances of your case and the destination country’s rules, will dictate the best method.
Anthony De Yurre is an attorney with the Miami-based law firm of Pathman Lewis, LLP. He is a graduate of Duke University (B.A.), Vanderbilt Law (J.D.) and University of Miami Law (LL.M.). His practice areas include complex commercial litigation, business litigation and real estate litigation. Fluent in Spanish and Portuguese, he represents a broad spectrum of international clients. Anthony can be reached at firstname.lastname@example.org.