Process Server

In our last post, we explained that the Convention on the Service Abroad of Judicial & Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is a multilateral treaty adopted on November 15, 1965 by member nations of the Hague Convention on Private International Law (the “Convention”). This Hague Service Convention created unified rules on several issues, including international service of process and has been ratified by 74 countries.

 

The Convention provides a streamlined way to effectuate international service of process through  each signatory nation’s Central Authority of each signatory nation. Until recently, it has been unclear as to whether service by mail is allowed and many plaintiff’s choose this method because it is faster than the methods provided under the Hague and other methods for non-signatory nations.

Unclear Position From Japan

 

The Japanese government did not object to service of process by mail at any point since signing the Hague Convention in 1970 until 2018. That being said, litigation with Japanese defendants did not clarify the issue until the United States Supreme Court (SCOTUS) issued a decision in Water Splash. In that case, a U.S. company sued a former employee in Texas state court. At the time of the lawsuit, the defendant was residing in Canada and was served by public mail, private mail, and email. The Texas state court entered a default judgment against the defendant for failure to respond. The former employee filed suit arguing lack of proper service and the parties argued whether the Hague Service convention allowed service of process by mail. The SCOTUS used the second interpretation of Article 10(a) and allowed service by mail.

 

Because the position of the Japanese government was not clear and courts could interpret that under the Hague service of process by mail is prohibited irrespective of whether a signatory objected to this method, using service by mail for Japanese defendants was a risk. Accordingly, many careful plaintiffs used service through the Japanese Central Authority (JCA) under the Hague Service Convention. Until the SCOTUS decision in Water Splash, the Japanese government had halted direct service of process by mail.

 

Bottom Line

 

After the SCOTUS decision in Walter Splash, it was more likely that service of process made directly to defendants located in Japan by mail would be permitted. Japan’s declaration, however, has annulled this alternative method of service. As a result, in contemplating future lawsuits against Japanese defendants, the parties to a deal may enter into negotiations where service under the Hague Service Convention is avoided by a potential plaintiff and in exchange the Japanese-stationed party can get favorable concessions in exchange for voluntarily accepting service of process. Indeed, an American party may request a Japanese counterpart to designate a United States agent for service of process in the event of a lawsuit in contract negotiations. Of course, the Japanese party should analyze the implications of agreeing to this.

 

More on this topic can be found here.

For info on service in Japan please go here. 

Every now and then, process servers experience circumstances in which they cannot serve a defendant in a pending lawsuit. Although non-service can occur, most plaintiffs prefer actual and perfected in-person service. Thankfully, in cases in which a defendant must be served by any means possible, there are alternative services of process available that can be requested and approved by the court.

 

Alternative Service Explained

It is important not to confuse alternative service with substitute service, as these are two different methods of service. Alternative service happens when a defendant is served by a method that is different from the traditional way of personal service. Substitute service, on the other hand, happens when someone other than the named defendant accepts service on their behalf. In other words, when it comes to alternative service the named defendant is served just by a non-traditional method.

 

Service of process is a critical piece of the legal system as its goal is to afford defendants in a lawsuit their rights to due process. If a party that is being sued, or has to appear in court, that party has a right to be notified of the legal action. Only when all attempts have been exhausted, alternative service may be used. There are many different ways in which alternative service can be handled including:

 

  • Physically posting a copy at the door of the defendant’s last known address;
  • Electronically posting a copy to the court’s website;
  • Publishing a notice of the lawsuit in a newspaper;
  • First class and/or certified mail;
  • Serving the defendant’s social media account;
  • Serving the defendant’s’ email address; or
  • Digitally service of process with ServeManager.

 

Each state has its own approved means of alternative service of process. For this reason, it is important to always check the state’s statutes regarding what is acceptable alternative service. In most states across the nation, all methods of alternative service must first be requested and approved by the court before being used.

 

Getting Alternative Service Approved

 

Because alternative service is only permitted as a last resort after numerous attempts at personally serving  party to a lawsuit have failed. There is a particular procedure that must be followed to request and obtain court approval for alternative service. This includes diligent inquiry, which requires a server to provide proof of a diligent effort to find the party being served prior to requesting alternative service. The next steps that may be included as part of a “diligent inquiry”:

 

  • Confirm military status: conducting a diligent search to determine if the party is on active duty;
  • Confirm jailed status: determine whether or not the party is incarcerated;
  • Confirm in patient/hospital status: check hospitals to determine if the party is an inpatient at a hospital;
  • Request alternative service: if the party cannot be located after the mandatory diligent attempts are made, the plaintiff must request alternative service from the court by way of a motion.

 

If you would like to schedule a service, contact us today!

Perhaps one of the less common tasks that an attorney needs to oversee, international service of process can be more complicated than serving a defendant domestically. For this reason, attorneys need to know what this involves and how to ensure international service of process is effectuated properly. Many issues can arise when serving a defendant internationally, including extended timelines, increased costs, and nuanced rules. Handling international service of process properly can be the difference between a successful case and one that is lost on a technicality. Below is some information all lawyers should know when filing suit against foreign defendants.

 

What is the Difference Between Domestic and International Service of Process?

 

When someone or an entity is served within the United States, service of process is done in compliance with state and federal rules of civil procedure. When it comes to international service, on the other hand, service must comply with the receiving country’s rules and laws regarding service of process. Generally, there are three ways to serve a defendant internationally:

 

  • The Hague Service Convention: In an effort to simplify how to serve a defendant in a foreign country, the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague Service Convention”) was created. Under this international treaty, countries who agree to this method of international service — referred to as “signatories” — can pick and choose which articles they agree to for service. Under the Hague Service Convention, a central authority was created in each sovereign when it comes to international service requests through a streamlined process. Once everything is received, each country handles the rest of service internally.
  • Letters Rogatory: If a country chooses not to be a signatory to the Hague Service Convention, then the next option for formal international service of process is Letters Rogatory. This process is much more expensive and longer than the method allowed through the Hague Service Convention. This is because there is a lack of uniformity. Moreover, Letters Rogatory require that the service go through a formal request process. These requests are processed through diplomatic channels that ask the receiving country to complete the service. Consequently, the timeline and result is significantly dependent upon the political relationship between the two countries involved in service; and
  • Service via agent: If the plaintiff is not seeking to have a judgment enforced by a foreign government, then the informal method of service of service via agent is a viable option for international service of process. Service in this manner is principally intended for notification purposes instead of for the purpose of the receiving country’s court system enforcing a judgment on a defendant. Instead, the foreign courts expect service to be completed in the particular manner prescribed by the receiving country.

 

We Can Help You

 

It is critical for all attorneys to follow the proper procedures and translation mandates when serving a lawsuit internationally. If you need to serve a document internationally, contact Ancillary Legal today.

If you need to serve a defendant out of state, it is important to properly serve legal documents. It is possible that the defendant moved, or you — the party pursuing the legal action — moved. Or maybe the parties have always been in different states. The question to be addressed is how to have the defendant, whether an individual or a corporation, served. This scenario happens more often than you would think. Many process servers estimate that up to a quarter of their business originates from out of state, according to research. While it is true that serving a defendant in another state takes more work than doing so in state, it is routinely done.

 

Before You File the Lawsuit

 

Before even filing the lawsuit, make sure that service can be lawfully attempted out of state.

Some areas of the law, such as real estate and car accident cases, allow servers to serve the defendant(s) that are not residing in the state in which the lawsuit was filed.
Not all areas of the law allow for this and, as a result, you and your attorney may have to file the lawsuit in the state where that person or entity resides.

It is also key to understand that each state has its own laws and procedures regarding civil process service regulations.

You will need to determine what rules apply to your lawsuit when you are faced with finding a server to carry out service upon a defendant who lives in another state. Some counties and states across the nation, like Kansas, may require a process server to obtain permission from a governing body or the sheriff’s office prior to serving the legal papers while others, like Wisconsin, may not. Moreover, other states or counties may require that service attempts be made via certified mail prior to using a process server. There also may be other specific rules governing when and how service is attempted; in some states, listed below, service cannot be attempted on holidays or Sundays.

  • No service on Sundays: Florida, Maine, Massachusetts, Rhode Island, South Dakota, and Virginia;
  • No service on Holidays: Minnesota
  • No service on Sundays except with Court order: Tennessee; and
  • Certain restrictions on Sunday service, depending on the documents: Texas.
More specifics regarding the process of service in particular states can be found at each state’s Rules of Civil Procedure.

It is also important to investigate whether personal service is required, if service can be made on a substitute party, or if the documents can be posted. Some states and counties require documents be filed electronically or the original stamped documents must be filed with the court. In addition to these general rules, there are several courts that have particular documents relating to the process of service that must be used.

We Can Help

 

At Ancillary Legal, we can help you with your out-of-state service of process needs. We have the experience and get the job done right. Contact us today for an initial consultation.

O.C.G.A. 9-11-4(h) provides that a return or affidavit reflecting service on a defendant shall be made and filed within 5 business days of service on the defendant. This causes confusion and concern for litigants who miss that deadline for various reasons such as the sheriff delaying providing the return or the mail delaying the process server’s affidavit.

 

What happens if you miss the five business days? Does that later invalidate the server that was successful? Do you have to serve the defendant all over again?

 

Unequivocally, the answer is no. But it can delay things.

 

In Georgia, a defendant, generally, has 30 days to answer a complaint that is properly served on him. If the 30th day is a day on which the courts are closed, then the last day to answer defaults to the next business day. However, the day of service does not count as a day during the 30 days. The day of the event, so the day of service, is considered day 0 in terms of calculating times to answer or what day the plaintiff can request a default from the court where the action is filed. For example, if someone is served on March 1st, day 1 of the 30 days is March 2nd. Thus, the 30th day would be April 1st if the courts are open.

 

For the 5-day rule for the affidavit or return being filed, let us assume that the date of service was April 1st. Day 1 of the 5-day rule would be April 2nd. The last day to answer would be five business days from April 2nd. For example, if April 2nd is a Wednesday, then the 5th business day would be Wednesday, April 8th.

 

What happens if you do not file the affidavit of service until April 9th?

 

According to O.C.G.A 9-11-4(h), if the affidavit of service is not filed within 5 business days of service, then “the time for the party served to answer the process shall not begin to run until such proof of service is filed.” Simply, failure to adhere to the 5-day rule extends the time in which the person served has to answer. It does not invalidate the service.

International service of process can be complicated, as there are many laws and regulations that must be complied with to effectuate proper service. A recent decision out of the U.S. District Court for the Southern District of California may provide a way for plaintiffs who are having problems regarding serving foreign defendants, according to JD Supra. This decision may be particularly helpful in light of the challenges that have arisen in service of process during the global coronavirus pandemic.

The Rules

Under Federal Rules of Civil Procedure 4(h)(2), a foreign corporation may be served in any way that is provided for foreign individuals under FRCP 4(f). The exception to this is personal service. Under Rule 4(f), there are multiple methods by which foreign process of service may be served. These include those that are authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the “Hague Convention”) and those prescribed by the foreign sovereign’s laws regarding service of process. Rule 4(f)(3), however, provides a “catchall” allowing service on a foreign party by “other means not prohibited by international agreement, as the court orders.” This service can happen a number of ways, including ordinary mail to the defendant’s last known address, by publication, by delivery to the defendant’s attorney, or via email. Seeking court’s approval to serve “by other means” under 4(f)(3) may avoid the procedural and jurisdictional delays commonly experienced in service through a foreign country’s legal system or through the Hague Convention.

Allied Rubber and Gasket

The plaintiff in  Victaulic Company v. Allied Rubber & Gasket Co., Inc.,was dealing with delays serving a Chinese defendant through the Chinese Central Authority in compliance with the Hague Convention. Foreign service of process had been unsuccessful, causing the plaintiff to seek five separate extensions from the court of the service deadline. On the sixth request for extension, plaintiff provided a statement from the Ministry of Justice for China that service of process can take over two years to complete and, on average, proof of service is returned between one to five months after date of service. The plaintiff further provided a report by the international law community regarding concerns that the Chinese Central Authority had stopped executing U.S. service of process requests. In addition, the service of process delays were further complicated by the global pandemic.

The court determined that service under Rule 4(f)(3) was necessary, based on the facts of the case. The inability to serve the defendant, albeit through no fault of the plaintiff, in the case had caused almost three years of delay in the case. So as to not require service in a manner prohibited by the Hague Convention, of which China is a party, the court required the plaintiff to publish a notice of the lawsuit in the electronic version of the Wall Street Journal Asia for four straight weeks as well as serve the defendant by electronic mail using the email address provided on its website, but not before voluntarily withdrawing the complaint without prejudice.

As the coronavirus pandemic continues to infect people across our nation and our governments try to stop the spread, the legal profession keeps getting pushed into uncharted waters. One legal issue that still remains unclear is how service of process will be affected not just for those trying to serve others, but those parties who are being served with lawsuits.

 

Below are some useful tips on how to serve, and how to be served, legal documents during these uncertain times in the midst of the pandemic.

 

For those concerned about serving others:

 

In order to make sure that legal papers are properly and timely served on defendants:

 

  • Check all standing orders, temporary rules, or other guidance from the jurisdiction where service is to take place as new orders are issued almost daily;
  • Monitor the websites and public postings of defendants to be served to have up-to-date information about where service is being accepted since most businesses have had to adjust and service locations may have changed;
  • Ensure that your process server does not leave the legal documents outside of physical offices or with unauthorized personnel as service would not be proper;
  • Be flexible with the defendant to be served when it comes to agreeing to serve via alternate methods that are accepted under the state and federal rules.

For those concerned about receipt of service:

In order to make sure that a defendant is not refusing service in a way that would trigger another service method that could result in lost legal documents:

  • Use a service to act as your registered agent, if you have not done so already, as now is a good time to benefit from these services;
  • Review and confirm that the list of statutory agents registered in each state is up-to-date;
  • Contact your registered agent to make sure there is a process in place to accept service on your behalf—especially in light of all the court orders on the issue;
  • If you cannot accept service at any physical location where a process server may attempt service, post a notice on the door with detailed information, post a list of office that are closed due to coronavirus and cannot accept service on the internet, establish a procedure for routing and reviewing legal documents is service is made on someone at one of those addresses.
  • Make sure there is a procedure for reviewing and routing all mail received by the legal department and its staff, so you do not miss any papers served by FedEx or certified mail.
  • Continue to monitor new court filings to catch lawsuits where plaintiffs argue that service was perfected but the legal documents were lost or misdirected.
  • When possible and desirable, reach out to the plaintiff and offer to waive or accept service via an alternative method.

If parties implement the above tips, the legal process will continue to run as smoothly as possible, considering we are in the midst of a global pandemic.

 

With the recent pandemic, insecurities over the economy and job security and other world events, it’s more important than ever to remain positive, both professionally and personally.

It’s easy to read those words but how do you incorporate daily positivity into stressful, sometimes negative environments?

Shift Your Energy

Roy T. Bennett says in The Light in the Heart “instead of worrying about what you cannot control, shift your energy to what you can create.”

Don’t immerse yourself in the worry and pessimism that is prevalent during taxing times. Put your energy elsewhere. Limit your time on social media and watching the news. Don’t react to others’ anger and frustration; instead, step away.

Choose to have a positive attitude. As Mr. Bennett says in The Light in the Heart, “attitude is a choice. Happiness is a choice. Optimism is a choice. Kindness is a choice. Giving is a choice. Respect is a choice. Whatever choice you make makes you. Choose wisely.”

Stay in Touch

For many people, a natural reaction to a negative situation is to withdraw and isolate. While temporarily it may soothe it can lead to feelings of separation and detachment.

As Daniel H. Pink says in Drive: The Surprising Truth About What Motivates Us, “human beings have an innate inner drive to be . . . connected to one another. And when that drive is liberated, people achieve more and live richer lives.”

Stressful times can be the best times to reconnect with your friends, family and co-workers. Even if you can’t chat in person, a telephone call or Zoom conference can lift your spirits and remind you what’s important.

Be Helpful

The quickest way to let go of fear and change your mindset is to help others.

Have a favorite charity? Donate — and can be not just money but also supplies and your time — and share that charity’s information with friends.

Offer to help your neighbors with tasks like grocery shopping and yardwork.

Brighten up your house, as well as your neighbors’ views, with a colorful positive message in your windows. If you have kids, let them furnish the artwork or use sidewalk chalk to put the artwork on your driveway.

Foster or adopt an animal from a local rescue/shelter. You’re giving a needy animal a home and that pet will give you unconditional love and positive energy.

Have Compassion For Yourself

Doing for yourself is not selfish, it’s necessary. In times of stress it’s even more important to do the little things that make your heart sing. Practicing yoga, soaking in a hot bath, curling up with a good book or old movie, enjoying a pot of delicious tea — all these things can ground us and recharge us. While isolation is not good, some alone time is beneficial to practice mindfulness and uplift your spirits.

Remember Everything is Temporary

Optimism is a great thing to embrace, even if it’s uncomfortable at first.

As Deepak Chopra says an optimist is “someone who is very aware and mindful of all the setbacks and roadblocks and less-than-ideal things that happen in their life. The caveat is they are just aware that those things are temporary and they have the ability to overcome them.” It’s okay to accept that things may not be ideal at this moment but there are setbacks and roadblocks that can be overcome.

If Nothing Else, Just Laugh

Gretchen Rubin in The Happiness Project says, “laughter is more than just a pleasurable activity . . when people laugh together, they tend to talk and touch more and to make eye contact more frequently.”

Let Us Help You

To continue to remain positive, both professionally and personally, do not hesitate to contact  Ancillary Legal for your legal support service needs.

It is no secret that the novel Coronavirus pandemic and response has forced businesses, including those in the legal industry, to adapt to regulations regarding physical interaction. Considering the social distancing requirements imposed on the general American public, we will look at how to continue to effectively carry out service of legal process in litigation.

Social Distancing Mandates

 

Jurisdictions across the nation have imposed social distancing requirements in response to the coronavirus pandemic. Most of these mandates are modeled after the Center for Disease Control’s (CDC) guidelines, which advise the avoidance of large gatherings and that individuals maintain a distance of about six feet. As a result, businesses should make sure that their policies adhere to these guidelines.

When it comes to service of process, it is important to make sure that social distancing requirements are not violated. When a lawsuit is first filed, the plaintiff’s attorney will typically hire a third party to serve process, which is a copy of the complaint or petition, summons, and any attachments, on the defendant(s). Typically, service of process happens by hand-delivering the documents to the defendants. In the age of coronavirus, though, hand-delivery of legal documents will cause issues with social distancing compliance.

Fortunately, depending on which state the lawsuit was initiated, there are likely alternatives to hand-delivery of service. In many states, legal papers can be left near a defendant or in a place where the defendant is informed about service. In fact, courts across the nation have allowed leaving process on a defendant’s porch or the home after announcing the nature of the documents. This method of service is commonly referred to as “drop service,” and was already in use pre-Coronavirus. Using “drop service” across all cases is likely appropriate in light of the current pandemic and social distancing orders because a defendant could not or would not physically accept service of process. A court would likely find, however, that if the process server leaves the papers near the defendant (or in a place the defendant would likely find them) and informs the defendant about service, that service was performed. The court’s final conclusion would hinge upon a competent affidavit from the process server describing in detail how service was effected. The same method could be used when serving a defendant’s registered agent. That being said, many businesses have been forced to close down due to stay-at-home orders.

We Can Help You

 

Social distancing guidelines, which can interfere with effectuating personal delivery of service of process, do not mean that you cannot pursue litigation. If you need to serve a complaint or petition on a defendant, whether domestically or internationally, do not hesitate to contact Ancillary Legal.

The highest court in the state of California is set to review whether or not a lower court’s decision to reverse a $414 million award granted in arbitration due to improper service was correct. The multi-million dollar award was given to an American partnership but later reversed when the Chinese business entity involved claimed it was not served properly.

The case is Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. The companies entered into an agreement that included a clause by which parties would provide notice in English via Federal Express or some other type of mail courier service in the event of a business dispute between them.

International Service

 

The Hague Service Convention is a multilateral treaty adopted in 1965 by member states to the Hague Convention on Private International Law. The purpose of the Hague Service Convention was to provide international litigants with a reliable and efficient manner in which to serve documents on parties that are living, operating, or based in another country. The provisions apply to service of process in civil and commercial matters but not criminal ones.

Under the Hague Service Convention, each state must designate a central authority to accept incoming service requests. Then, a judicial officer competent to serve process in the origin country is allowed to send the request directly to the central authority of the country where service is to be made. Once received, the central authority in the receiving state arranges for service of process in the manner permitted in that country. Once service is effected, the central authority sends a certificate of service to the judicial officer who made the service request.

For those states who are not party to the Hague Service Convention, the service of legal documents occur through diplomatic channels and effected by a letter rogatory – a formal request to issue a judicial officer from a court in the state where the proceedings have started to be served by the originating court to the foreign ministry in the country of origin. This process is even longer than the one required by the Hague Service Convention typically going from the foreign ministry of the originating country to the one in the designated country, then to the local court, then an order is issued to allow service, then a certificate of service is issued. The certificate of service would pass through the same channels, but just in reverse order.

It is not uncommon in international business practices for companies to include a similar workaround in their agreements to avoid the requirements of service via the Hague Service Convention or Letters Rogatory. The purpose of this workaround is to limit the expenses associated with litigation and avoid delays typically associated with international service, which can take up to six months.

The Case at Hand

In Rockefeller Technology, the monetary award was granted after the defendant Changzhou never showed up to arbitration. A California trial court confirmed the award when the defendant once again failed to appear. When Changzhou sought to dismiss the award, the judge refused to do so because the parties had privately agreed to the service by mail. Because the Hague Service Convention does not allow individuals to be served by mail – nor does it allow them to accept these terms, the California Court of Appeals reversed the ruling noting China had filed objections to the provisions of the Hague Service Convention addressing other methods of service, which included service by mail.

The California Supreme Court’s review of the case is particularly important as it highlights the close examination over the use of the Hague Convention in countries where service via the postal service is not considered valid. Not surprisingly, based on the outcome of the California Supreme Court’s decision in the matter – and any other subsequent decisions by a higher court – American companies that have international contracts may want to reconsider how those agreements are written when it comes to addressing service of process in the event of a business dispute.