Friend of Letters Blogatory William S. Dodge, of the UC Davis School of Law, has published a draft of a paper on substituted service that is forthcoming in the William & Mary Law Review. Bills’ excellent article reviews the variety in state law on the use of affiliated companies as involuntary agents for service and the use of substituted service on state officials such as the Secretary of State. On the issue of service on affiliates, Bill takes the view that state laws are often too restrictive. Typically the law requires the same showing that would support a veil-piercing argument. On the issue of service on the Secretary of State, he takes the view that state laws are often too loose: they sometimes provide that the service is deemed complete when the document is served on the Secretary, without requiring any transmission abroad. In both cases, his touchstone is the Due Process Clause. He proposes that states should permit service on affiliates if the Due Process Clause’s test for notice is met, and that that in light of due process, states should not deem service complete upon delivery to the Secretary, which is just notification au parquet by another name. It seems to me that on the question of service on the Secretary of State, Bill is 100% right to suggest that due process requires more than delivery to the state official. On the question of affiliates, it would surely be permissible, from a constitutional perspective, to extend the permission to serve affiliates to the limits of the due process clause, but I am not sure it would be wise. Even though it’s an issue of foreign law rather than US law, I would be concerned about leading American lawyers to use the quick and easy path and to obtain judgments that might be more difficult to enforce against the parent companies abroad.
Practitioners will find the fifty-state survey on both types of service to be a handy reference.
To me one of the interesting unaddressed questions is this: when you serve a foreign company by serving its subsidiary in the United States (or serving its lawyer in the United States, or serving the Secretary, or whatever), are you effecting service in the United States, or are you effecting service abroad by delivering documents in the United States? Obviously you are not transmitting the documents abroad for service, and thus the Service Convention does not come into play (except to the extent the law in some states requires the Secretary to forward the documents abroad, because that transmission is within the scope of the Convention). But that’s not the entire story. The article focuses on state law, and so FRCP 4 is not directly relevant. But suppose you are in federal court and, leaving aside state law, you seek permission from the court under FRCP 4(f)(3) to serve a foreign company by serving its US subsidiary. That’s a fairly common fact pattern. On the one hand, it would seem that you are serving process in the United States, since the whole point of the exercise is to avoid application of the Convention. On the other hand, FRCP 4(f) applies, on its face, only when you are serving process outside of the United States. This is tangential to Bill’s point, which focuses on state law, but his paper brings it to mind.