Article of the Day: Bill Dodge on Substituted Service

Bill Dodge has a new post at Transnational Litigation Blog on Substituted Service and the Hague Service Convention, which brings to our attention a new revision of his forthcoming paper in the William & Mary Law Review. This is the kind of post and paper that speaks to me as a practitioner, because it combines smart thinking with a really useful 50-state survey (though as Bill notes, many states haven’t taken a position on his issue yet).

Bill approves of the rule that he says California, Illinois, and Massachusetts have adopted, which allows service on a foreign company by service on a US affiliate, as long as the service is reasonably likely to give notice to the defendant, and regardless whether there are sufficient grounds for veil-piercing. Parenthetically, I am not sure I would describe this as the rule in Massachusetts, since to my knowledge our appellate courts have not spoken on it. But Bill is 100% right to note that such a rule is entirely consistent with the Service Convention, because the Convention applies only when there is occasion to transmit a judicial document for service abroad. Bill also is correctly critical of statutes allowing substituted service on a Secretary of State, at least where the statute requires transmission of the documents from the Secretary of State to the defendant abroad and the Secretary makes no effort to comply with the Convention. Perhaps paradoxically, a pure notification au parquet system would be less objectionable, from the perspective of the Convention.

Bill notes that substituted service is an example of the ways in which state law is relevant to transnational litigation. State long-arm statutes are another example. But let me raise a procedural issue I’ve raised before,1 in the hopes that Bill might give some thoughts. While long-arm statutes are incorporated into the federal law of personal jurisdiction, Fed. R. Civ. P. 4(k)(1)(A), service doesn’t quite work that way. Instead, we have one rule for service “in a judicial district of the United States,” Rule 4(e), and another rule for service “at a place not within any judicial district of the United States,” Rule 4(f). These are, of course, mutually exclusive. (I’m ignoring the added complication here about service on corporations, just to make my point). There are many cases under Rule 4(f)(3) authorizing service of a foreign company by serving a US subsidiary, or by serving the foreign defendant’s US lawyer, or whatever. This suggests that the courts think that when I am serving a foreign defendant by delivering the papers to some person or entity in the US, I am serving process abroad, even though no transmission of a judicial document abroad is required and thus even though the Convention does not come in to play. You might think that these cases are wrong and that when the documents are served in the United States, that the service is effected in the United States and that Rule 4(f) should not apply. But that’s certainly not the way most of the cases go. So let’s assume that the cases are right and that Rule 4(f), not rule 4(e), applies when you serve a document on a person in the United States in order to effect service on a foreign defendant. The point I want to make is that while Rule 4(e) incorporates state law methods of service, Rule 4(f) does not. So assuming that Bill’s arguments are good in state court, I am not sure they should apply in federal court.

But I don’t want to hijack Bill’s excellent post and paper with a procedural tangent! His discussion of what the Due Process Clause actually requires is on the money. There would be something almost Lochnerian about saying that Due Process requires that you (or a sheriff!) put a piece of parchment with a big wax seal into my hand. And of course, there’s that fifty-state survey in the underlying paper.

  1. I haven’t tried to dig up all the posts, but here are a couple: https://folkman.law/2014/01/16/drew-technologies-robert-bosch/ and https://folkman.law/2016/02/24/22270/.

This Post Has 2 Comments

  1. Bill Dodge

    My thanks to Ted for his kind words about the article and for spreading the word among readers of this blog (of whom I am also one).

    Ted raises a good question about service in federal court. Because Rule 4(e)(1) permits service in the United States by following state law, the forms of substituted service permitted under state law are also available in federal court. In California, for example, a plaintiff in federal court can serve a foreign parent company by serving its subsidiary in California. Plaintiffs do this all the time.

    But as Ted points out, the Federal Rules authorize additional means of service in federal court, including any means ordered by the court that is not prohibited by an international agreement under Rule 4(f)(3). I don’t see how state rules on substituted service would bind a federal judge under Rule 4(f)(3). So, a federal judge in New Jersey should be able to order substituted service on a subsidiary under Rule 4(f)(3) even though New Jersey courts have rejected such substituted service under state law. (My article didn’t look at service on counsel under state law. But whatever that state law is, it similarly would not bind a federal judge under Rule 4(f)(3).)

    What does bind federal judges is the requirement of due process (under the Fifth Amendment for federal courts). This means that service under Rule 4(f)(3) must provide constitutionally adequate notice under Mullane. As explained in the article, that will not typically be a problem when a court orders substituted service on an affiliated company. Nor would it be a problem for service on counsel. It would only be a problem if a court were to order substituted service on someone unlikely to inform the defendant of the suit, like a state secretary of state, and it is hard to imagine a federal court doing something like that.

Leave a Reply

Related Posts

folkman llc banner
Learn more about Ted Folkman and our practice areas. Read Ted’s award-winning blog on international judicial assistance, Letters Blogatory.
Subscribe to our newsletter

Please subscribe to our “Clients and Colleagues” newsletter, which we typically send approximately quarterly.