Trial Magazine

Successful service of process is essential in any lawsuit, but when a foreign defendant is involved, the process is significantly more complex. Take the necessary steps to ensure that service complies with all applicable laws.

Do your research. Since service of process differs across jurisdictions, you must be sure to follow the relevant rules. Serving a foreign defendant requires understanding the laws in the jurisdiction where your case is filed and the laws of the country where the defendant is located. International defendants commonly challenge the sufficiency of service in court, often in the form of a motion to dismiss based on lack of personal jurisdiction due to the plaintiff’s failure to serve them properly. Conducting thorough research up front will lessen the likelihood of such a challenge and better prepare you to respond to this motion should one be filed.

Locate the party. You cannot serve a foreign defendant without knowing that party’s location. First, consider whether service is being made on a corporation or an individual. If the defendant is an individual, identify where he or she is ­physically located, including the last known residence. If the defendant is a corporation, review the laws of the jurisdiction where the case is pending to determine who can be served and at what location. You will need to consider whether the corporation has a registered agent or a domestic location where service can be made. Use internet searches, business entity databases, and the defendant’s articles of incorporation to find this information.

If you have trouble locating the defendant, you may find that initial attempts at service are unsuccessful. Perform further research, try again, and consider whether other service methods are required. The best way to avoid this is 
to be diligent and use whatever means necessary to find an accurate location at the beginning. This can range from simple internet searches to using a private investigator, depending on the circumstances.

Understand the Hague Service Convention. The Hague Service Convention is an international treaty that provides methods to serve defendants in foreign countries. First, confirm whether the country where the defendant is located is a signatory to the convention—you can find a list of member countries on the convention’s website (www.hcch.net/en/states/hcch-members).

Second, review the laws of the jurisdiction where you filed the case to determine whether use of the convention is expressly permitted or whether service on the foreign defendant requires that documents be sent abroad. If these factors are not satisfied and the convention does not apply, you will need to serve the ­defendant in accordance with the requirements of the jurisdiction where the case is pending.

If these factors are satisfied and the convention applies, assess what service methods prescribed are available and optimal in your case. The primary, but not exclusive, service method under the convention is to use the central authority of the country where service is being made. The central authority is an agency that receives requests for service and then arranges service of documents on the individual or entity within its borders. If the defendant is a corporation, the existence of a domestic agent that can be served in lieu of sending documents abroad may negate the need to use the convention at all. For the convention’s full language, visit https://tinyurl.com/yd9kvd4h.

If service is unsuccessful at first, stay focused, and make subsequent attempts in a timely manner.

Know your time limitations. It is crucial to identify the time limits to complete service in the jurisdiction where your case is filed. Serving an international defendant can take time, and certain service methods through the convention will take too long in jurisdictions with short time restrictions. For example, using the central authority often takes four months or longer, so it may not be a viable option. Always be conscious of your deadlines and choose a service method that will allow you to comply with them. If service is unsuccessful at first, stay focused, and make subsequent attempts in a timely manner.

Your options for international service of process depend greatly on both where the case is filed and the defendant’s location. Preparation and diligence are the keys to success.

Corey G. Lorenz is an attorney at Habush Habush & Rottier in Madison, Wis. She can be reached at clorenz@habush.com.