Tag Archive for: service of process

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Failure to get Translation Gets Foreign Case Dismissed

On May 8, 2019, the Higher Regional Court of Frankfurt (“HRCF”) in Germany held that although a translation of the statement of claim is not required under the law, a plaintiff is responsible for doing so if he or she opts for a translation under Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the “Regulation”). If the process of service of the statement of claim (“statement”) is delayed for lack of translation, the plaintiff bears the legal risk under applicable German law that the time limitations on filing a suit are not tolled because the statement was served months after the filing.

 

The Case

 

The lawsuit was filed by a plaintiff-insolvency administrator against a defendant that was domiciled in France. According to applicable law, the deadline to file a claim expired on December 31, 2015. Plaintiff initiated the claim on December 15, 2015 at Darmstadt Regional Court (“DRC”) without a translation of the statement of the claim. Instead, the plaintiff asked the DRC to obtain a translation and paid the fee in advance to the court. DRC had difficulty finding a translator and, as a result, only received the translated statement of claim in October of 2016. The translated statement of claim was served on the defendant in December of 2016. Not surprisingly, the defendant alleged the statute of limitations had passed.

 

Court Decisions

 

The DRC ruled in plaintiff’s favor, allowing the case to proceed, and cited Section 167 of the German Code of Civil Procedure (“ZPO”). UnderSection 167, the deadline to serve a statement of claim is suspended with its filing if it is served “in the near future” and the party seeking service did not cause the delay. The DRC found that the delay in the service of the statement of claim was not due to the plaintiff but, rather, the court’s slow handling of the translation. Defendant appealed.

 

The HRCF reversed the DRC’s decision and dismissed the lawsuit, determining it was statute-barred. The HRCF held that the plaintiff did not do all that was reasonably required to ensure service was effectuated “in the near future” under Section 167 of the ZPO. The court did not address the question of whether service of a statement of claim a year after its filing could be construed as “in the near future.” The HRCF held that under Article 5(1) of the Regulation, the plaintiff is not required to provide a translation of the statement of claim for the defendant. That being said, Article 8(1) of the Regulation allows a defendant to refuse service if he or she does not understand the content of the document or it is written in another language than that of the receiving member state. If a defendant refuses to accept, then the document must be served with a translation. Notably, the relevant service date for tolling a statute of limitation under Article 8(3) of the Regulation is the initial service attempt.

 

For more information on the case, visit Baker McKenzie’s Global Litigation News.

For international service of process; visit Ancillary Legal.

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Alternative Service of Process: What is it?

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!

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International Service of Process: What Lawyers Need to Know

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.

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Is Mexico A Member Of The Hague Convention?

Attorneys And Paralegals Frequently Ask “Is Mexico A Member Of The Hague Convention?” The Short Answer Is Yes. However, The Question Is A Bit More Complicated Than A Simple Yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Mexico is a member.

This means that process service in Mexico must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Mexico has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Mexico’s central authority is the only recognized agency for service. Even further, Mexico has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Mexico’s requirements means you will lose time and money.

When you have a service request for Mexico, make sure to hire someone that knows Mexico’s rules but also guarantees their translations. Mexico routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Mexico. We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Mexico for accuracy to Mexico’s specific requirements. We are happy to help you serve documents in Mexico, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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Serving a Defendant in Another State: What to Do?

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.

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The Three Biggest Issues With International Process of Service

Process of service can be complicated, and international process of service can be even more so. Not surprisingly, issues with international service of process can cause significant headaches when the party initiating the lawsuit is dealing with two or more countries. Indeed, an attorney may ask the process server to purchase plane tickets so that an individual may be served in a terminal before he or she leaves to another country. While this can be an extreme example, there can be a serious amount of time, effort, and costs involved in the international process of service industry. Additionally, there are times when international service of process is unavoidable, such as in cases involving the collection of a judgment. Below are a few of the biggest issues that parties face when attempting to properly execute international service of process.

 

How to Serve

 

Perhaps one of the easiest issues to solve when it comes to international service of process is how to properly serve internationally. It is critical to know and understand whether a country where service needs to occur is a signatory to the Hague Service Convention (“Convention”) or to the Inter-American Service Convention (“IASC”). It is also important to know whether or not the party seeking a remedy needs a judgment to be enforced. Knowing these issues will help determine how to proceed with service of process.

 

Timing of Service

 

Depending on the type of international service of process, service can take from several months to up to a year. When someone is involved in a lawsuit or has pending legal matters, the parties want the issues resolved as quickly as possible. The general timeline of international service of process is not ideal for most in this situation. Further delays happen when foreign governments and consulates are involved. This is particularly true when the country in which service is being processed are not signatories to any treaties or conventions. This could result in an even longer timeline for international process of service.

 

Thankfully, there are alternatives, such as service via an agent, to seek out a shortened international service of process timeline. Going this route, however, depends upon whether or not the party is expecting a foreign sovereign to enforce a judgment or ruling after service has been completed. If the party initiating the international service expects to use service via agent, then he or she should expect to serve the international process according to the laws and rules of that specific country, which could take even more time.

 

Knowing Applicable Laws

 

While a sovereign may be a signatory to the Convention, this does not mean that the country complies with every portion of the international treaty. This is because a sovereign can refuse to agree to service by mail or alternate service of process and yet still be signatories to the Convention, by simply striking out the portions with which it does not agree.

We can Meet Your Process Service Needs

 

If you need process service help, contact Ancillary Legal today. Our experienced team has experience handling cases in the United States or overseas. Let us help support your litigation needs by contacting us today.

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Effectuating Service of Process While Social Distancing

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.

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