SERVICE OF PROCESS ON A PARTY RESIDING IN A FOREIGN COUNTRY CAN BE A DAUNTING TASK FOR U.S. CLIENTS AND ATTORNEYS.
In a general scenario, a plaintiff starts a court case in the United States by lodging a complaint following which a court clerk provides a summons that demands the appearance of the defendant in the court. The complaint and the summons are typically termed as a legal ‘process’. Once the action is commenced, the plaintiff will arrange for the ‘service of process’. Service of process is crucial for establishing authority on the defendant in the case and helps ensure that he/she makes an appearance at the court proceedings.
The first step in filing a complaint against a person who lives abroad is to ask the court for an extension on the time period needed for serving the complaint on to the defendant.
According to the California Rules of Court Rule 3.110, a defendant needs to be provided with the Summons within two months after the original complaint is filed or 30 days post the filing of an altered Complaint.
Over 60 days are needed for serving a foreign defendant. Also, the court will sanction you in case you fail to show good cause with regards to why the foreign defendant was not served. When a defendant resides in a foreign country, it is considered to be a good cause.
Methods of Service in California
In California, it is possible to serve a defendant living in a foreign nation using any method listed under the California Code of Civil Procedure (amount of $415.40 for serving an individual living in a different state). Such methods would typically include substituted service, personal service, service via publication, and service via certified mail (return receipt).
You could also implement service through the methods allowed by the nation where service is made. This particular method can be used only if it is approved by a court in California.
In the first go, service of process on an individual living abroad may appear to be quite simple. But the matter could get complicated if the method of service is restricted by an international treaty. The Inter-American Convention on Letters Rogatory and the Hague Service Convention are the main applicable treaties.
The Hague Convention
It was in February 1969 that the Hague Convention came to be implemented for the first time in the United States. The convention offers the most common methods to serve parties in commercial or civil matters in foreign lands, that is, outside the United States. The Hague Convention has been ratified by more than 70 countries, including China, the Russian Federation, and the majority of the Western European nations.
The universally accepted service of process procedures is codified by the Hague Convention in commercial or civil matters among signatories. The service methods help eliminate the need for serving process via diplomatic or consular channels.
Under the Hague Convention, three key alternative methods of service are listed:
1. Using the official Central Authority of the state (Reference: Service through the State’s Central Authority)
2. DirectService via agent in destination state (Reference: Service through an Agent in the Destination State)
3. Worldwide postal channels (Reference: Service through Postal Channels)
The Inter-American Convention on Letters Rogatory governs the ‘Letters Rogatory’ method for service. You need to send the Letters Rogatory to an official “Central Authority” in the country where the service is being attempted to get effectuated. This needs to be supported by several other documents including a copy of your complaint and information on obtaining legal aid in the US. If a nation has signed the Hague Convention, the service needs to be carried out as per the Convention rules.
Shulman Family Law Group
Maya Shulman, Esq.