Process Servers

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. 

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. 

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. 

Over the past 15 years, the electronic process of service (“e-service”) has become more and more popular. The manner in which American courts have permitted e-service in domestic and international lawsuits has changed the legal landscape—and it continues to do so. Below is some basic information on e-service and why this issue is important for anyone in the legal industry.

History of e-Service

E-service is not a novice process, as the first case of service via e-mail occurred in Rio Properties, Inc. v. Rio International Interlink. In this case, Plaintiff (a Nevada hotel and gambling entity) sued Defendant (a Costa Rica-based internet gambling entity) for trademark infringement. Service was effectuated by regular mail to Defendant’s attorney as well as its international courier and was also effectuated via email. When Defendant failed to comply with discovery orders, the court entered a default judgment. Defendant filed a motion to dismiss for lack of personal jurisdiction and insufficient service of process, which the trial court denied and Defendant appealed.

E-service through social media, however, did not start happening until 2011 when a court allowed alternative service via Facebook in a divorce case. Since that case, Mpafe v. Mpafe, the approval of e-service has been sporadic across the United States. Most of these cases involved family law matters and were coming out of New York. The decision is Harleysville Insurance v Mega, however, has extended permission of service via social media beyond family law matters. The court required the plaintiff to serve across multiple social media platforms for several weeks, and provide specific proof that it was effectuated.

Service Via Social Media

The court’s opinions in the cases approving the service of process via social media all had similar mandates for approving the method. First, plaintiffs’ counsel had to have undergone adequate due diligence in attempting to serve the defendant(s) personally. Second, the social media account used for the service of process had to belong to the appropriate defendant. Third, there had to be a likelihood that the documents sent via e-service by way of the social media platform would actually be viewed. Currently, the generally available alternative method to personally servicing a defendant is publication. This method can prove expensive—particularly if the plaintiff has to run the notice for multiple weeks across multiple publications. Social media is a viable alternative to publication considering the vast number of users on these platforms and the likelihood of seeing the documents when compared to the decreasing rates of newspaper purchases and subscriptions.

We Can Help

Improper or ineffective service of process can run your case—whether the defendant is located domestically or abroad. Contact Ancillary Legal for all of your litigation support needs. Our experienced team will ensure that your case moves forward properly so that you can focus on litigating. Additionally, if you need assistance with depositions, transcriptions, or videography, please contact us at Elizabeth Gallo Court Reporting.