22 September 2021

Service of Process Under the Hague Service Convention During the Covid-19 Pandemic

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (“Convention”) establishes a uniform procedure for the service of court documents on parties located in one of its 79 contracting countries. This article briefly outlines the operation of the Hague Service Convention with respect to service of process originating from a United States district court and discusses the effect of the COVID-19 pandemic on service under the Convention.

The Convention in General

The Convention applies in all civil matters in which “there is occasion to transmit” a judicial or extrajudicial document for service abroad” as defined by the requesting member state[1]. To effect service on a foreign party under the Convention, a party must transmit the documents to that member state’s “Central Authority,” which will determine whether service upon the party to be served is permissible under its internal law, and if so, serve the documents and provide a certificate of service[2]. A member state may also consent to methods of service other than formal requests to its Central Authority such as service through postal channels directly upon the party to be served[3]

The Convention in the United States

The United States is a member of the Convention, but the interaction between United States law and the Convention can be multifaceted and complex. Under U.S. law, Federal Rule of Civil Procedure 4(f) governs service of process on individuals outside the United States[4]. Individuals may be served under any “internationally agreed means of service” such as the Convention, or they may be served by an alternative method determined at a court’s discretion, so long as it is not prohibited by international agreement. [5]

Rule 4 presents these methods of service as equally valid alternatives, and U.S. law does not require the serving party to pursue service through an international agreement before asking a court’s assistance in ordering alternative service. The decision to allow that service is reserved to the sound discretion of the district court. Accordingly, a district court [6]could permit a party to serve documents abroad without resorting to the procedures of the Convention. 

Prior to authorizing alternative service outside of the Convention, however, a U.S. district court will usually require the serving party to provide a showing that the: (1) plaintiff has reasonably attempted to effectuate service on the defendant, and (2) circumstances are such that the court’s intervention is necessary.[7] Most courts interpret these requirements as obligating a party who seeks to serve in a Convention member state to attempt service under the Convention prior seeking alternative service. [8]

In that regard, prior to seeking alternative service, the party seeking to serve legal process on a party located in the territory of a signatory to the Convention must expend “significant effort” in complying with the Convention.[9] What constitutes “significant effort” is determined on a case-by-case basis, but a district court will typically review several factors including the number of attempts at service under the Convention, efforts to locate the party to be served, and communications with the relevant Central Authority. [10]

Significant effort alone, however, is often insufficient to justify alternative service outside the Convention. U.S. district courts may also require that the serving party demonstrate that alternative, court-ordered, service is necessary. [11] As with significant effort, whether alternative service is “necessary” is left to the discretion of the court. District courts have found alternative service to be necessary where resort to Convention service would create a risk of severe delay, [12] and where a member state has refused to process the requests of another member state. [13]

A district courts may also take a more pragmatic view and consider the facts of the case and its procedural posture in determining whether to authorize alternative service. One of the rationales provided by the court in GLG Life Tech for authorizing alternative service -- even though no attempt at service under the Convention was made -- were that the defendant was “not a citizen of China and has voluntarily and closely associated himself with a non-Chinese entity that is already a served co-defendant[14].” Relatedly, although not explicit in its decision, the district court in Convergen Energy LLC v. Brooks appears to have authorized alternative service because defendants were aware of the suit, amenable to service by alternative means, and protracted attempts at service of process would delay adjudication of the case on the merits. [15]

Court-authorized alternative service must still comport with international agreement, including the Convention. Many member states have raised reservations to alternative means of service under the Convention, such as service via postal channels in Article 10. Accordingly, it will lilely be difficult to convince a district court to grant alternative service upon a party located in a member state with such an objection. [16]

Convention Service & COVID-19 

The COVID-19 pandemic has disrupted the operation of the Central Authorities and international postal systems across the world. Many Central Authorities have indicated that service of process may be severely delayed, while others have stated that they cannot guarantee that service of process can be effected in the member State. Some member states have explicitly authorized service of process by alternative means, such as email, during the COVID-19 pandemic[17]. In these premises, courts treat the COVID-19 pandemic in much the same way as other difficulties in effecting service and may be more likely to permit alternative service upon a showing that COVID-19 has made compliance with the Convention difficult[18]. Indeed, the district court in Convergen Energy LLC v. Brooks authorized alternative service without any attempt at service under the Convention, although the plaintiff had contacted the Central Authority prior to submitting its request for service and received confirmation that service could be delayed.

Underscoring the discretionary nature of alternative service, however, some district courts remain steadfast in requiring proof of attempted service under the Convention and proof of delay or impossibility of compliance with Convention service procedures from the relevant Central Authority prior to authorizing alternative service[19]. Even where the Central Authority has suspended service or authorized alternative methods, serving parties who successfully obtain alternative service have attempted service under the Convention multiple times before requesting alternative service. [20]

Conclusion

U.S. parties seeking to effect service of process abroad during the COVID-19 pandemic should consider the relevant member State’s reservations and declarations to the Convention, as well as any public statements about the processing of service requests under the Convention in that member State. Where the serving party believes that service may be disrupted, it would do well to contact the Central Authority for information, attempt service under the Convention, and keep the court apprised of its efforts to demonstrate that it has expended “significant effort” in complying with the Convention prior to requesting an alternative means of service under Rule 4(f)(3). Absent those efforts, correspondence with the relevant Central Authority that tends to support an application for alternative service should be helpful to obtaining a positive result.



[1] Convention Art. 1.

[2] Id. at 698-99; Convention Art. 2.

[3] Convention Arts. 8-11, 19.

[4] Fed. R. Civ. P. (4)(f).

[5] Rule 4(f)(2) also provides methods for service where there is no internationally agreed upon means or if the international agreement allows but does not specify other means. Fed. R. Civ. P. 4(f)(2).

[6] Peifa Xu v. Gridsum Holding Inc., 2020 WL 1508748, at *14 (S.D.N.Y. Mar. 30, 2020).

[7] Baliga ex rel. Link Motion Inc. v. Link Motion Inc., 385 F. Supp. 3d 212, 220 (S.D.N.Y. 2019).

[8] Halvorssen v. Simpson, 328 F.R.D. 30, 34 (E.D.N.Y. 2018) (explaining that this threshold requirement “has be[en] engrafted” on to Rule 4(f)(3) “to ensure that parties do not avoid the requirements of the Hague Convention and instead, whimsically seek an order of alternative service.”); S.E.C. v. China Ne. Petroleum Holdings Ltd., 27 F. Supp. 3d 379, 398 (S.D.N.Y. 2014) (explaining that resort to alternative service must be a measure of necessity rather than convenience).

[9] S.E.C. v. China Ne. Petroleum Holdings Ltd., 27 F. Supp. 3d 379, 398 (S.D.N.Y. 2014).

[10] See China Ne. Petroleum Holdings, 27 F. Supp. 3d at 398 (holding that “one attempt to serve . . . pursuant to the Hague Convention” and failing to engage the relevant “authorities after the first attempt at service under the Hague Convention could not be completed” indicated insufficient diligence to justify alternative service.”); Sulzer Mixpac AG v. Medenstar Indus. Co., 312 F.R.D. 329 (S.D.N.Y. 2015) (finding significant efforts where “[p]laintiff timely attempted service through the Hague Convention; has made multiple queries to the Chinese Central Authority; and has diligently kept the Court apprised of these efforts.”).

[11] Baliga, 385 F. Supp. 3d at 220.

[12] See, e.g., Brown v. China Integrated Energy, Inc., 285 F.R.D. 560, 562–66 (C.D.Cal.2012) (ordering alternative service and noting that service of defendant under the Hague Convention would take four to six months); GLG Life Tech Corp., 287 F.R.D. at 266–67 (ordering alternative service because service under the Convention could take “six to eight months[and] may unnecessarily delay this case.”).

[13] See, e.g., RSM Prod. Corp. v. Fridman, No. 06 CIV. 11512 (DLC), 2007 WL 1515068, at *1 (S.D.N.Y. May 24, 2007) (authorizing alternative service on Russian party even though Russia and the U.S. are parties to the Convention because “the Russian Federation's designated Central Authority is no longer processing service requests from the United States until the United States resumes service of Russian letters rogatory on a reciprocal free basis in accordance with the [sic] Russian-American long-term judicial practices.”); Missouri ex rel. Schmitt v. People's Republic of China, No. 1:20-CV-0099-SNLJ, 2021 WL 1889857, at *1 (E.D. Mo. May 11, 2021) (granting motion for alternative service where People’s Republic of China refused to process service request on grounds that to do so would violate its sovereignty); Zhang v. Baidu.com, 932 F. Supp. 2d 561, 563 (S.D.N.Y. 2013) (authorizing a motion for alternative methods of service where the People’s Republic of China objected to service under the Convention under Article 13).

[14] 287 F.R.D. at 266.

[15] No. 20-CV-3746 (LJL), 2020 WL 4038353, at *1 (S.D.N.Y. July 17, 2020)

[16] See RSM Prod. Corp. v. Fridman, No. 06 CIV. 11512 (DLC), 2007 WL 1515068, at *2 (S.D.N.Y. May 24, 2007) (denying motion for alternative service on Russian defendant by postal channels because of Russia’s objection to Article 10 of the Convention); Shenouda v. Mehanna, 203 F.R.D. 166, 171 (D.N.J.2001) (service through postal channels to defendant in Egypt impermissible).

[17] In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2021 WL 1989928, at *2 (S.D. Fla. Apr. 1, 2021) (“[T]he Supreme Court of India has expressly authorized the service of all legal documents via email in light of COVID-19.”).

[18] See, e.g. Convergen, 2020 WL 4038353, at *4 (authorizing alternative service where the Spanish Central Authority indicated that due to COVID-19 it would “not be able to ensure the processing of every request received for the duration of this exception situation and that only urgent requests, with due accreditation of said urgency.”); Xiaoyuan Zhang v. Valaris plc, No. 19 CIV. 7816 (NRB), 2021 WL 982460, at *2 (S.D.N.Y. Mar. 16, 2021) (granting motion for alternative service where “the website for the United Kingdom Central Authority stated that service of judicial documents was suspended in light of the COVID-19 pandemic.”).

[19] See Tevra Brands LLC v. Bayer Healthcare LLC, No. 19-CV-04312-BLF, 2020 WL 3432700, at *5 (N.D. Cal. June 23, 2020) (denying motion for alternative service and noting that “the hardships of COVID-19 weigh heavily on all facets of life. But where a plaintiff fails to show that service through the Convention would be unsuccessful or result in unreasonable burden or delay, simply citing COVID-19 as an obstacle is not sufficient to bypass the requirements of the Hague Convention.”); Aerodyn Eng'g, LLC v. Fidia Co., No. 20-10896, 2020 WL 3000509, at *2 (E.D. Mich. June 4, 2020) (denying motion for alternative service on foreign defendants where plaintiff cited to circumstances surrounding the COVID-19 pandemic).

[20] 2021 WL 982460; 2021 WL 1989928.




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