Author: Mariah Gravley

International Service by Mail: Allowed and Effective?

Service of process on a foreign defendant can be complicated, as proper service is wholly dependent upon the rules of both countries involved in the litigation as well as any treaty that the nation-states may have agreed to as signatories. One example of such an international agreement is The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters—commonly referred to as the Hague Service Convention. In an attempt to get around the requirements involved in effectuating the service of process internationally, many are choosing the method of service by mail. While service by mail seems to be a simpler way to effectual international service of process because it avoids sending service through a foreign court, the consulate, or trying to locate the individual, it is likely not the best option. This is because improper service can negatively affect the legality of the lawsuit as well as hinder the ability to enforce any resulting orders and/or judgments from an American court.

 

International Service by Mail

 

According to a 2017 United States Supreme Court (SCOTUS) decision, Water Splash Inc. v. Menon, international service of process by mail is an accepted method of service under the Hague Service Convention. International service by mail, however, is only appropriate if the receiving country has not objected to this method and the nation’s laws do not restrict this type of service. Even if a country is a signatory to the Hague Service Convention it is crucial to research the nation’s laws and any objections.

 

If a receiving country is not a signatory to the Hague Service Convention and service was completed by mail, this can make effectuating service more complicated. Indeed, one of the first things that the attorney representing the foreign defendant will look for when their client is served in an American court is the method of the service of process. Typically letters rogatory are an alternate method when serving a nation that is not a signatory to the international treaty, however, they take time and are expensive. Consequently, there is a high likelihood of the service of process by mail being challenged and the plaintiff being unable to enforce a U.S. court order or judgment.

 

Takeaway

 

If you need to sue an out-of-country defendant in a United States court, it is critical that the service of process is effectuated in a legal and valid manner. Otherwise, the time and expense spent on the litigation can be in vain if the plaintiff cannot collect on a judgment against the foreign defendant. Whether or not service of process by mail is allowed in international litigation depends on if the receiving country is a signatory to the Hague Service Convention. Even when the receiving nation is a signatory to this international treaty, it is still critical to research if there are any rules prohibiting service by mail or any existing objections by the receiving nation.

 

Contact Ancillary Legal if you need international litigation support, including properly effectuating the process of serving oa foreign defendant. Our team will provide excellent support service to ensure that you can focus on litigating the matter. For assistance with court reporting, depositions, transcriptions, and videography; contact us at Elizabeth Gallo Court Reporting. 

Lawsuit Not Dismissed Despite Ineffective and Untimely Service

An American plaintiff who filed suit against a foreign defendant managed to avoid the case being dismissed by the court. This was despite the service of process being both untimely and improper on the Canadian defendants. Instead, the Massachusetts District Court used its discretion and quashed service and did not throw out the case.

 

International Service

 

Generally, when the service of process is effectuated internationally, the method must meet the requirements of the Hague Service Convention (HSC) if the foreign country where the lawsuit will be served is a signatory to the international treaty. Under the HSC, each signatory must establish a central authority to receive requests for service of the process of legal documents from other nations. A plaintiff could serve a foreign defendant internationally by other methods—such as hiring a process server or by international mail—instead of going through the nation’s central authority. This is only allowed, however, if that foreign nation does not object to the alternative methods. If there is no express objection by the foreign nation, the courts will look to that country’s internal service rules to decide if the country would object to a specific method of service of process.

 

The Case

 

In the case at hand, Granger v. Nesbitt, a car accident happened in Massachusetts, USA. The injured plaintiff filed a lawsuit based on negligence in Massachusetts state court against two foreign defendants — the driver and the company that employed him. Both parties were Canadian residents. The defendants removed the case to federal court under diversity jurisdiction and also moved to dismiss based on improper and untimely service of process. Since the case was initially filed in state court and then removed to federal court, service in the matter was governed by Massachusetts state procedural law.

 

Canada, as a signatory to the HSC, designated the Ministry of the Attorney General—located in Ontario—for international service. Massachusetts procedural law requires that a summons and complaint be served within 90 days of filing the complaint with the court. Unless the plaintiff can show good cause for failing to meet this service deadline, the case will be dismissed. “Good cause” means that the attorney undertook reasonable and diligent attempts to timely serve the defendants. Federal rules of civil procedure are similar, except that they recognize that service abroad results in delays and exempts international service from the 90-day deadline. Massachusetts’s civil rules of procedure do not provide for this exemption.

 

The court used its discretion and held that although the service of process was ineffective (documents served on a designated person) and late (two months past the 90-day deadline) the Plaintiff could have properly effectuated service and allowed the case to continue.

 

International Litigation Support

 

If you are in need of international service of process support, contact Ancillary Legal. Our experienced team will ensure that your case moves forward properly so that you can focus on litigating. If you need assistance with court reporting, depositions, transcriptions, or videography; contact us at Elizabeth Gallo Court Reporting. 

 

 

Taking a Deposition of Someone in India? Here are Some Tips

Depositions in India

 

When it comes to taking the deposition of a witness in India, it is crucial to understand what types of depositions are permissible by the court when it comes to the evidentiary value of the testimony. India’s courts have relied heavily on corroboration of witness testimony. Testimony given by a witness must be carefully evaluated to rule out any coaching or embellishment. This is because India’s courts have required corroboration of testimony and have even rejected testimony in part or in full.

 

Tips to Follow

 

While preparation is key to taking a deposition successfully, it is just as important to become familiar with the process of deposing a witness and the various rules governing depositions in the appropriate jurisdiction. Some basic points that will help you whilst preparing for a deposition includes:

 

  • Ensuring that a competent court reporter is retained and has all of the needed information;
  • Make sure all documents being used as exhibits are in order;
  • Review and rehearse any difficult terms that will be used during the deposition;
  • Write out points of questioning in order, ensure that they are bulleted and brief;
  • Keep your questioning short to ensure the deponent does most of the talking;
  • Strike out points that are covered during the deposition to stay on track.

 

Final Thoughts

 

Keep away from putting together a strict outline, as a deposition can sometimes go on tangents during testimony. This can help make the deponent comfortable so that they reveal information unprompted. Additionally, do not underestimate the power of silence. A fantastic tool to get your witness to ramble is to stay quiet and be a good listener, as they may divulge information that could lead you to important evidence. Be sure to turn the deposition into a conversation, to allow for a better flow of information. Do not let push-back or objections from opposing counsel sway you during your questioning.

 

If you need litigation support on a domestic or international lawsuit, contact Ancillary Legal today. If you need assistance with depositions, transcripts, or court reporting; contact us at Elizabeth Gallo Court Reporting today.

 

Taking a Deposition of a Witness in Mexico

If you or someone you know is involved in a lawsuit and needs to take the deposition of a witness in Mexico, it is important to know what options you have under the law. Simply put, you are allowed to depose a willing witness in Mexico but there are some restrictions according to the U.S. Department of State.

 

  • First, provided there is no compulsion used voluntary depositions of American witnesses can be conducted in Mexico irrespective of the witness’s nationality.
  • Second, prior permission from the Mexican Central Authority for the Hauge Evidence Convention is required when deposing Mexicans and other nationals.
  • Third, depositions on written questions or oral depositions may be taken on notice by the U.S. Consular officers or by private attorneys from:

 

  • The U.S. or Mexico at the American Embassy;
  • One of the American Consulates; or
  • Another location such as an office or hotel.

 

  • Fourth, prior arrangements must be made directly with the American Embassy if the services of a U.S. consular office are necessary to administer an oath to the witness, interpreter, and stenographer.

 

Basics of Mexico Depositions

 

Handling a litigation matter in which some of the witnesses—as well as the physical evidence—are located outside of the United States requires that the attorney carefully consider all of the available options under the law for seeking and successfully obtaining the evidence needed for a deposition. Once the attorney determines that taking a deposition overseas is necessary, they should first determine if the foreign country in which the witness is located—in this case, Mexico—is a member of the Hague Convention on Taking Evidence Abroad on Civil or Commercial Matters. If the nation is a member and signatory, then the attorney has the option of using a provided method or another permissible method. Mexico is a member of the Hague Evidence Convention and, consequently, allows the taking of voluntary depositions of a witness who is willing to testify regardless of that witness’s nationality and without any special requirements.

 

Once it is granted, a deposition in Mexico can occur at a place of your choosing—whether that be a conference room, law firm office, hotel room, or video conferencing location. To be prudent, you should allow your self at least four weeks of lead time to plan so that you are able to locate and book the correct locally-based professionals for the deposition in Mexico. This can include attorneys, court reporters, interpreters, videographers, and any other needed personnel.

 

If you need litigation support on a domestic or international lawsuit, contact Ancillary Legal today. If you need assistance with depositions, videography, or transcripts contact us at Elizabeth Gallo Court Reporting.