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Foreign Service of Process: An Alternative Method

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.