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BY JONATHAN W. FOUNTAIN, ESq.

seRViCe of PRoCessaBRoaD

he phone rings. You pick it up. It’s your most important and most solvent client. She wants you to file a lawsuit in federal court against – gasp – that company

she has been dealing with in Venezuela, of all places. Your heart pounds. Your mouth dries up. Your muscles tense. You utter a knee-jerk “sure, no problem,” without even thinking about the myriad complexities that loom ahead. Chances are, if you’ve never sued a foreign defendant, words like société anonyme and aktiengesellschaft may sound like greek to you. Take my word for it. They’re not.

Filing your lawsuit poses no great difficulty. Assuming you can establish subject matter and personal jurisdiction over the foreign defendant (a topic for another article), you start thinking, “do I hire Jerry, the local process server, to fly down to Venezuela and serve the defendant?” Unfortunately for you and for Jerry, unless the defendant or its agent is present within the U.S. forum state and can be served there, the answer is no. Let’s deal with the exceptions first.

Service upon a foreign defendant who is present within the U.S. forum state and can be served within the U.S. forum state is generally effective absent any state-specific prohibitions. See Volkswagenwerk Aktiengesellschaft, v. Schlunk, 486 U.S. 694, 707 (1988); see also Wissmiller v. Lincoln Trail Motosports, Inc., 552 N.E.2d 295, 299-300 (Ill. App. Ct. 1990) (“The Hague Convention applies only where process is actually served in a foreign country. Where service is properly effected in the forum nation, the [Hague] Convention is wholly inapplicable.”) Similarly, if the foreign defendant is not present within the U.S. forum state, but operates in the U.S. forum state, for example, through a subsidiary that acts as the defendant’s general agent in the U.S. forum state, service upon the subsidiary may be sufficient to bind the foreign defendant. See, e.g., Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994) (holding that service of process on a Washington state corporation that was

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the general agent of a German corporation was effective service on the German corporation). Accordingly, where a foreign defendant or its general agent are present within the forum and can be served there, service of process generally raises no nail-biting issues.

On the other hand, where the foreign defendant really is a foreign defendant – in other words, where the foreign defendant is a foreign individual or business organization located in a foreign country and is not present and does not have a general agent in the U.S. forum – service of process may require many months of nail-biting.

Generally speaking, service of process is defined as the formal procedure used to give a defendant actual, concrete notice of the pendency of a lawsuit such that: (1) the defendant can appear before the court and defend against the lawsuit on the merits; and (2) it would be fair for the court to rule against the defendant if he or she fails to defend against the lawsuit.

Under the Federal Rules of Civil Procedure (FRCP), there are three ways to serve individuals and companies located in a foreign country.1 These methods are governed by FRCP 4(f)(1), 4(f)(2), and 4(f)(3).

First, under FRCP 4(f)(1), service may be accomplished by complying with the terms of an international treaty, such as The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (hereinafter the “Hague Convention”). Depending upon the particular country involved, other conventions may apply, such as the Inter-American Convention. However, service of process upon foreign defendants is most commonly achieved under the Hague Convention because of the large number of signatory nations.2

A copy of the Hague Convention is included in the notes to FRCP 4. The Hague Convention applies where: (1) a document is to be transmitted abroad for service in a signatory country; (2) the address of the company or person to be served is known; (3) the document is a judicial3 or “extrajudicial”4 in nature; and (4) the document relates to a civil or commercial matter. See Hague Conference on Private International Law, Outline Hague Service Convention, available at http://www.hcch.net/upload/outline14e.pdf. If the foreign country where the defendant to be served is physically present is a signatory to the Hague Convention, use of the convention’s procedures are mandatory. See David J. Levy, International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts 5 & n.14 (ABA Press 2003) (citing Shenouda v. Mehanna, 203 F.3d 166 (D. N.J. 2001) (“Where a destination country (such as Egypt) is a signatory to the Convention, the Convention’s procedures are the exclusive means by which service of process may be effected in that country. Failure to comply with the Convention voids the attempted service.”)

Under the Hague Convention, each contracting state designates a “central authority” to receive requests for service of process. To serve a foreign company or individual, an “officer”5 in one signatory country transmits a “letter of request”6 to the central authority in the destination country. The central authority in the destination country forwards the request to local judicial officials who actually serve the documents on the defendant. There are two potential sources of ambiguity – the channel used to transmit the request and the manner in which service is accomplished. First, the Hague Convention provides for one primary channel of transmission and several alternative channels of transmission. Under the primary channel of transmission, the “officer” in the requesting state transmits the documents directly to the central authority in the destination state. See Ristau, supra, § 4-2-4(1). So, for example, a U.S. attorney may execute a letter of request and send it via Federal

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Shann D. Winesett, Esq.

and

Michelle Hauser, Esq.

of Pecos Law Group

are pleased to announce the addition of

Stephen R. Minagil, Esq.

Stephen has practiced law in Nevada since 1977 and mostrecently served as General Counsel for the Southern Nevada

Health District. Stephen will be practicing primarily in familylaw, administrative law and criminal law.

Shann D. Winesett. Esq.

Commercial LitigationCivil Litigation

Family Law

Michelle Hauser, Esq.

Family LawCriminal LawJuvenile Law

Pecos Law Group8925 South Pecos Road, Suite 14B

Henderson, Nevada 89074(702) 361-2318

SERVICE OF PROCESS ABROADCONTINUED FROM PAgE 11

Express directly to the foreign central authority. This is the simplest and most expedient means of transmission. The alternative channels of transmission are: (1) the diplomatic channel; (2) the postal channel; (3) direct communication between judicial officers, officials or other competent persons of the requesting state and the destination state; and (4) direct communication between an interested party and judicial officers, officials or other competent persons of the destination state.

These alternative channels exist because, in certain countries, requests for service of process abroad must, by law, go through consular channels. See id. § 4-2-4(2). Generally speaking, because a U.S. attorney may transmit the letter of request directly to the foreign central authority, there should be little to no need for a U.S. attorney to utilize any of these alternative channels of transmission. Second, with respect to the manner in which service is actually accomplished, there are three avenues: (1) by delivery to a defendant who has agreed to accept service voluntarily and without legal compulsion; (2) by any method that may be

lawfully employed for service in the foreign country; and (3) by any method requested by the officer making the request, provided that the method is lawful in the destination state. Thus, because the terms of the Hague Convention permit service to be accomplished in different ways, “the Hague Service Convention is not preemptive of all methods” of service, provided that the method of service (i.e., personal delivery, mail, publication, e-mail, fax, carrier pigeon, etc.) complies with the foreign country’s laws with respect to service of process. See Levy, supra, at 21 & n.76 (emphasis added) (citing V&S Vin & Spirit Aktiebolag v. Cracovia Brands, Inc., 212 F. Supp. 2d 852 (N.D. Ill. 2002)).

For example, if the defendant has agreed to voluntarily accept service, the foreign judicial officials need only deliver the documents to the defendant. If delivery by carrier pigeon is the lawful means of serving judicial documents in the foreign country, the documents may be served in that manner. If the officer making the request has asked for service to be accomplished by a specific method, such as publication or certified mail, return receipt requested, the destination state will do so if it is not inconsistent with its laws.

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As this demonstrates, to properly effect service of process in a foreign country, the practitioner must know which methods for effecting service of process are lawful in the foreign country. Accordingly, the retention of local counsel in the foreign country is not just a good idea, it’s a must. Foreign local counsel speak the local language. They know the judges and the procedures for serving individuals and businesses. And, in times when political tensions between the United States and the foreign country are strained (such as the current state of affairs between the U.S. and Venezuela), foreign local counsel can monitor the process and, if necessary, intervene with the local courts to ensure that the papers are actually served upon the defendant rather than being placed in the foreign round file – a not-too-uncommon phenomenon.7

Thus, in a nutshell, service of process under the Hague Convention generally proceeds as follows:

1. The plaintiff’s attorney or other officer, such as the judge in the court where the action is pending, completes and executes a “letter of request,” in the form mandated by the Hague Convention, addressing it to the central authority of the foreign country.

2. The plaintiff’s attorney or other officer, such as the judge in the court where the action is pending, sends the letter along with the summons and complaint (and any required translations) directly to the corresponding central authority in the destination country.

3. The foreign central authority forwards the documents to the local court that has jurisdiction over the defendant.

4. The local court directs a judicial officer, such as a bailiff, sheriff, or hussier, to serve the summons and complaint in the manner specified in the letter of request or in a manner permitted under the destination country’s laws.

5. Once service has been completed, the local court will forward documentation indicating that service was accomplished to the foreign central authority.

6. The foreign central authority will complete the “certificate” portion of the letter of request in accordance with Article VI of the Hague Convention, stating that service was accomplished, the date service was accomplished and the manner in which service was accomplished.

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7. The foreign central authority then sends the certificate to the foreign country’s department of foreign affairs, who will send it to the U.S. central authority, who will send it to the officer who made the request.

Second, under FRCP 4(f)(2), service may be accomplished “by a method that is reasonably calculated to give [the defendant] notice,” so long as: (a) service is achieved in the same manner permitted by the foreign country’s laws for service of process; (b) it is done as directed by the foreign country’s government in response to a “letter of request” or a “letter rogatory;” or (c) it is not prohibited by the foreign country’s laws (i) by personal delivery to the defendant or (ii) by mail provided that a signed receipt is requested and obtained. See FRCP 4(f)(2). Service under Rule 4(f)(2) usually comes into play when there is no applicable international treaty governing service of process or where the treaty that does apply “allows for other means of service than those specified in the treaty” itself. See Levy, supra, at 5. As is the case above, in order to know whether the intended method of service is lawful in the foreign country, the plaintiff’s counsel should retain and consult with local counsel in the foreign country.

Service under subsection (a) may be effected with the assistance of local counsel in the manner permitted under local law. Thus, under this subsection, a local attorney may be able to personally serve the defendant. See Levy, supra, at 7. Under subsection (b), service may be obtained through a written request to the foreign government, termed a “letter of request” or a “letter rogatory.”8 A letter rogatory is simply defined as a request from a judicial officer in one country (i.e., a judge) to a judicial officer in another country that asks for the foreign judicial officer’s assistance in serving the defendant in the foreign country. The U.S. State Department’s website contains detailed information on the preparation of letters rogatory, including a sample letter rogatory. See http://www.travel.state.gov/law/info/judicial/judicial_683.html.

Letters rogatory are addressed to the appropriate judicial authority in the foreign country (e.g., “To the appropriate judicial authority in Venezuela”). They are issued under the seal of the U.S. court and must be signed by the judge; the court clerk should not sign on behalf of the judge. See Ristau, supra, § 3-1-13 & n.1. They are transmitted through diplomatic channels and the destination country may require that they be “authenticated.” Authentication refers to a process whereby the court’s seal is authenticated by a seal from, in the case of the U.S. federal courts, the Administrative Office of the United States Courts. That seal is then authenticated by the U.S. State Department, and

the U.S. State Department’s seal is then authenticated by the Washington embassy of the foreign country. See Ristau, supra, § 3-1-13 & n.1. Thus, obtaining service via a letter rogatory is an extremely slow process. According to the U.S. State Department, “[l]etters rogatory are a time-consuming, cumbersome process and should not be utilized unless there are no other options available.” See id. Accordingly, practitioners should generally avoid service by means of letters rogatory at all costs, especially where foreign local counsel may be able to identify an alternative and less burdensome manner of service permitted by local law.

Third, under FRCP 4(f)(3), service may be accomplished “by other means not prohibited by international agreement, as the court orders.” See Fed. R. Civ. P. 4(f). Thus, upon the plaintiff’s ex-parte motion, the court may allow service even by non-traditional means, including e-mail, facsimile or international courier, so long as the chosen means are not prohibited by any governing international agreement. See, e.g., R. Griggs Group Ltd. v. Filanto Spa, 920 F. Supp. 1100, 1103-1108 (D. Nev. 1996) (service via Federal Express on corporate defendant’s president in Italy was valid). This is particularly useful when time is of the essence – for example, where injury or harm to the plaintiff may be complete before service could otherwise be effected, or where the plaintiff seeks injunctive relief, as is often the case in matters involving intellectual property rights. FRCP 4(f)(3) is also useful where the defendant has actively taken steps to conceal its identity and/or otherwise avoid service of process. See, e.g., Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (affirming service of process upon Brazilian operator of Internet business by e-mail and international courier).

One final point is worth noting; the 120-day time limit for effecting service of process under FRCP 4(m) does not apply to the service of process upon defendants located in foreign countries. See FRCP 4(m) (“This subdivision (m) does not apply to service in a foreign country...”). Although the clerk of the court may issue an order asking the plaintiff to show cause why the action should not be dismissed for failure of service, to satisfy the court, practitioners should only have to point out that Rule 4(m) does not apply in the international context and demonstrate diligent attempts to effect service upon the defendant.

JONAthAN W. FOuNtAIN is a member of the intellectual property and technology practice group at Lewis and Roca LLP in Las Vegas, Nevada. he has litigated intellectual property and other matters in federal court for clients such as IbM, Kmart, FTD, Aristocrat Technologies, Mattel, NIKe, hewlett-Packard and others.

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100 City Parkway, Suite 1600 | Las Vegas, NV 89106-4614Brownstein Hyatt Farber Schreck, LLP | bhfs.com

Brownstein Hyatt Farber Schreck is pleased to announce our newest Shareholder:

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1 As set forth above, this article assumes the existence of subject-matter and personal jurisdiction over the foreign defendant and that the foreign defendant is not present within the forum, has no general agent within the forum and has not otherwise appointed a registered agent to accept service of process within the forum.

2 The following countries are signatories to the Hague Convention: Anguilla, Antigua and Barbuda, Argentina, Aruba, the Bahamas, Barbados, Belarus, Belgium, Belize, Bermuda, Botswana, the British Virgin Islands, Bulgaria, Canada, the Cayman Islands, China, Cyprus, the Czech Republic, Denmark, Djibouti, Egypt, Estonia, the Falkland Islands, Fiji, Finland, France, French Polynesia, Germany, Gibraltar, Greece, Guernsey, Hong Kong SAR, Ireland, the Isle of Man, Israel, Italy, Japan, Jersey, Kiribati, South Korea, Kuwait, Latvia, Lithuania, Luxemburg, Macau SAR, Malawi, Mexico, Montserrat, the Netherlands, Nevis, Norway, Pakistan, Pitcairn Island, Poland, Portugal, the Russian Federation, St. Helena, St. Lucia, St. Vincent and the Grenadines, the Seychelles, the Slovak Republic, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Turkey, the Turks and Caicos Islands, Tuvalo, the Ukraine, the United Kingdom, the United States, and Venezuela. For more detailed information on the Hague Convention, see http://www.hcch.net/index_en.php?act=conventions.text&cid=17.

3 “Judicial” documents include those “issued in the course of a civil or commercial litigation...[such as]...a summons and complaint, writ, warrant, mandate, citation, show cause order, subpoena, or judgment...requiring formal service....” See Ristau, supra, § 4-1-4(7). Judicial documents do not include those issued by an administrative tribunal or agency. See id.

4 “Extrajudicial documents differ from judicial documents in that they are not directly connected with a contested lawsuit...Examples [are] demands for payment, notices to quit leaseholds and protests of bills of exchange...which under the laws of several jurisdictions are issued by a notary public or administrative officer of a court and require service by a process server.” See Ristau, supra, § 4-1-4(7).

5 The law of the country making the request determines who is an “officer.” Thus, in certain countries, attorneys, solicitors or private process servers may forward a request for service to the destination country. For example, in the U.S., attorneys are considered “officers,” and may execute letters of request. See 1 Bruno A. Ristau, International Judicial Assistance: Civil and Commercial § 4-2-2 (3d ed. 2000).

6 The Hague Convention precisely specifies the form of the letter. See FRCP 4 (Treaties and Conventions). The model form contains three parts, a request to the foreign judicial authorities for service, a certificate to be completed by the foreign judicial authorities when service is accomplished and a summary of the documents being served.

7 Another important reason for obtaining local counsel is that foreign governments view the act of service as a judicial function, and may view attempts to serve process upon their citizens as an affront to their sovereignty. For example, in Austria, Japan and Switzerland, it is illegal for foreign officials or private parties to perform judicial function (i.e., to serve documents) without permission from local authorities. See Ristau, supra, § 3-1-3. Local counsel can help assure that the foreign government does not perceive your attempts to serve the defendant as an usurpation of judicial power or, even worse, a crime.

8 Although statutory authority generally refers to the instrument as a “letter rogatory,” the terms “letter rogatory” and “letter of request” (which is used specifically in the Hague Convention) have come to be virtually synonymous in actual practice. See Epstein & Snyder, International Litigation: A Guide to Jurisdiction, Practice & Strategy § 10.09, pp. 10.13-10.14 (2d ed.); Black’s Law Dictionary 905 (6th ed. 1994); FRCP 4(f)(2)(B) Advisory Committee’s Note (1993).