The California Litigator
November 29, 2011
By Justin Madding, Paralegal
Every once in a while I get a case where it becomes necessary to serve a Summons on a person who resides in a foreign country. These cases are few and far between for me, so I have to refresh my memory on the process each time I do it. This article will outline the process for effectuating service on a foreign defendant in a California civil suit.
The first thing that you should do when serving a Complaint on a person that resides in a foreign country is to request an extension of time from the court to serve the Complaint upon the defendant. California Rules of Court Rule 3.110 provides that a defendant must be served with the Summons no more than 60 days after the filing of the original Complaint, or 30 days after filing an amended Complaint. It will take more than 60 days to serve the foreign defendant, and you will be sanctioned by the court if good cause is not shown as to why the defendant has not been served. A defendant residing in another country is good cause.
You can serve a person in a foreign country by any of the methods normally used under California Code of Civil Procedure §415.40 to serve a person living outside the state. These methods would include personal service, substituted service, service by certified mail with a return receipt, or service by publication.
You may also effectuate service by any method permitted by the country where the service is being made. This avenue is subject to approval by a California court to determine if the method of service used was “reasonably calculated to give actual notice.” CCP §413.10(c)
At first glance, service on a person living in a foreign country looks very simple. However, matters become complicated when the manner for service is limited by international treaty. The two applicable treaties are the Hague Service Convention and the Inter-American Convention on Letters Rogatory.
The method for service by letters rogatory is governed by the Inter-American Convention on Letters Rogatory, 28 USC section symbol 1781. “‘Letters rogatory’ by definition are requests from one country to another for assistance in the administration of justice, and may be used to seek assistance in serving or deposing foreign residents.” Kreimerman v. Casa Veerkamp, S.A. (5th Cir. 1994) 22 F3d 634, 640, fn. 27. Letters rogatory are sent to an appointed “Central Authority” of the country in which you are attempting to effectuate service and must be accompanied by a copy of the complaint, information identifying the judicial authority issuing the letter, time limits for when the defendant must respond, and information on where to obtain legal aid and information in the United States. The Central Authority will then effectuate service.
There are three reasons I do not recommend service by letters rogatory: it takes a very long time to effectuate service; the rules of the Hague Convention trump all other methods for service in signatory countries; and, the majority of the civilized countries are signatories to the Hague Convention. However, further information on the form, content and use of letters rogatory may be obtained from the U.S. Department of State’s website.
If a country is a signator of the Hague Convention, then service must be effectuated in accordance with rules of the Convention. You will find a list of the member countries on the Hague Conference website.
It is important to note that if the service of the defendant deviates in any way from the processes set forth by the Convention, then the service is not valid even if the defendant received actual notice.
It is also important to note that service by publication is not covered by the Hague Convention. To serve a foreign defendant in a signatory country, direct transmission of the documents being served is required. Therefore, if you do not know the location of the foreign defendant, you will need to hire a personal investigator.
There are three methods for service of process authorized by the Hague Convention. The first method is very similar to the diplomatic service by letters rogatory referred to above. Each signatory country must appoint a “Central Authority” who is authorized to receive, reject, and/or execute requests for service from abroad upon its own citizens. It is also possible to effectuate service through diplomatic channels or by mail as long as the signatory country has not registered a formal objection to either method of service. You can obtain the contact information for each country’s Central Authority and their service methods objections at this link.
All documents to be served under the Hague Convention must be accompanied by a mandatory form entitled Request for Service Abroad of Judicial or Extrajudicial Documents. Here are some tips to ensure that your request is not rejected and the service will be valid:
When you identify the person to be served, if the person is not being served in their private capacity, it is important to state their capacity i.e. representative of an estate, doing business as, etc.;
Provide the name, address and telephone number for where the person being served may seek legal aid and information in the United States. This information may be obtained from the U.S. Department of State, Judicial Assistance;
Provide the name, address and telephone number of the entity issuing the Request. In our case, that would be U.S. Department of Justice. It would also be helpful to list your firm’s contact information so that the recipient may contact you.
Identify the parties involved even though the parties are identified on your legal document;
State whether the document being served is a “Judicial Document” or “Extrajudicial Document.” Any document relating to litigation is a Judicial Document. Anything else is an Extrajudicial Document;
State the nature and purpose of the document being served, and the nature and purpose of any upcoming proceedings;
Identify the items or amount in dispute. This is essentially a statement of damages with an explanation of the grounds for your claim;
State the exact date for which the person being served must make an appearance in response to the document served. The date should be spell out. Not all countries use a calendar as mm/dd/yyyy;
Identify any and all deadlines in the action related to the documents served; and
Have your Request for Service Abroad translated to the language of the country in which the documents are being served. Send the English version and the foreign language version.
After this form is completed, attach copies of the document to be served and forward them the applicable country’s Central Authority. Good Luck!
ABOUT THE AUTHOR: Justin Madding is a personal injury paralegal to Attorney David K. Cohn, Managing Senior Partner; and Attorney Matthew C. Clark, Partner, with the law firm of Chain | Cohn | Stiles in Bakersfield, California.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this website, or to any other website to which this website or articles may be linked.
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