Does the Hague Convention permit U.S. litigants to directly serve process on foreign defendants by mail?
Last week, a federal court in Colorado highlighted a circuit split over the appropriate method for serving process on foreign defendants. As the court explained, “[t]he Hague Convention is a treaty entered into by the United States and other countries, including Sweden, which provides a ‘simple and certain means by which to serve process on a foreign national.’ S. African Apartheid Litig., 643 F. Supp. 2d at 432.” Galloway v. Flexstar Technology, Civil Action No. 10-cv-02853-CMA-MTW (D. Colo. Jan. 5, 2012).
By “simple and certain means,” the cited court was referring to the Convention’s mandate “that each signatory country is required to establish a ‘Central Authority’ in order to receive and attempt to satisfy requests for service of process coming from foreign countries.” Id. Does the Convention’s express establishment of a “Central Authority” created for the sole purpose of serving process implicity bar other forms of service, including direct service by mail?
The court points out a split on the issue:
Compare Nuovo Pignore v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002) ("the Hague Convention does not permit service by mail") with Ackerman v. Levine, 788 F.2d 830, 839 (2d Cir. 1986) ("service of process by registered mail did not violate the Hague Convention."). Plaintiff should brief the issue if he still desires to attempt to effectuate service through the mail.
Id. at n.4. In 1998, the Fourth Circuit agreed with the Second Circuit that Article 10(a) of the Hague Convention permitted service of process on foreign defendants by mail. Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998).