Commercial Litigation and Arbitration

Serving Private Parties in Foreign Countries

Individuals. Rule 4(f) of the Federal Rules of Civil Procedure governs service of a Federal complaint upon individuals in a foreign country. Under Rule 4(f)(1), service is permitted by internationally agreed means (such as the Hague Convention). If there is no agreement with the relevant country, Rule 4(f)(2) applies. It permits service in three ways: (A) as allowed under the foreign country’s laws, (B) through issuance of a letter rogatory, or (C) unless prohibited in the foreign country, by personal delivery or service by mail issued by the court. Service by any other means requires prior court approval. See Fed. R. Civ. P. 4(f)(3).

Corporations and Unincorporated Associations. Rule 4(h)(2) governs service on a foreign corporation or association. The Rule permits service ‛in any manner prescribed for individuals“ under Rule 4(f) other than personal service.

Waiver Requests. Serving foreign parties can be costly. As with domestic service, Rule 4(d)(2) permits a notice and waiver request to be sent by mail to foreign individuals and entities. Unlike domestic service, however, a foreign individual or entity can ignore the waiver request without triggering mandatory imposition of the costs of service. See Fed. R. Civ. P. 4(d)(2)(providing for cost shifting ‛[i]f a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States“).

Time Limits. Serving foreign parties, particularly under the Hague Convention or through issuance of a letter rogatory, can take time. Rule 4(m) governs time limits for service. The Rule requires service within 120 days, absent good cause, but specifically states that this 120-day rule ‛does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1).“

There is some ambiguity here. Rule 4(m) states explicitly that the 120-day limitation does not apply to service ‛pursuant to“ Rule 4(f), the foreign individual rule, and Rule 4(j)(1), the foreign government rule. It does not explicitly reference Rule 4(h), which governs service on foreign entities. Rule 4(h), however, incorporates, with one exception, the methods of service permitted under Rule 4(f). Some courts appear to be satisfied that the Rule 4(m) exception to the 120-day rule draws no distinction between individual and corporate service. See Nylock Corp. v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005) (Rule 4(m) inapplicable to service on foreign corporation).

That does not, however, necessarily mean that a party serving a foreign entity or individual can delay taking steps to effectuate service before the 120-day period expires. Usha (India), Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129, 133-34 (2d Cir. 2005) (dismissing for failure even to attempt service within 120-days) (citing Montalbano v. Easco Hand Tolls, 766 F.3d at 807 (2d Cir. 1985)); Nylock, 396 F.3d at 807 (considering plaintiffs’ efforts to serve within 120-days and distinguishing those efforts from cases involving ‛no attempt to begin the process of foreign service“). Compare Lucas v. Natoli, 936 F.2d 432 (9th Cir. 1991) (‛We find the controlling language…so clear that it allows no latitude for interpretation. Whether or not the Rules of Civil Procedure should be amended to deal more adequately with the question of service in foreign countries is not for us to decide.“)

Doug Pepe

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