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International Service Under the Hague Convention W University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2004 International Service Under the Hague Convention W. Mark C. Weidemaier University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: Administration of Justice Bulletin This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. administration of justice Number 2004/07 December 2004 INTERNATIONAL SERVICE OF PROCESS UNDER THE HAGUE CONVENTION W. Mark C. Weidemaier Service of process – i.e., the formal delivery of documents that are legally sufficient to charge the defendant with notice of a pending action1 – is generally necessary before any significant step in a lawsuit, such as entry of judgment against a party, may be taken.2 This is true whether the parties to the lawsuit are located within or outside the United States. When faced with a challenge to the validity of service on a party within the United States, however, the court’s inquiry may be straightforward. Rule 4(j) of the North Carolina Rules of Civil Procedure authorizes the use of a variety of alternative methods of service. Proof of service by any of these methods will suffice to establish jurisdiction over any party otherwise subject to the personal jurisdiction of the court.3 It is increasingly common, however, for litigation to involve parties located outside the United States. The expansion of international trade and the growing ease of international travel have resulted in a large number of international business and other relationships that may result in litigation.4 These disputes have appeared in state and federal courts in great 1. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988). 2. See, e.g., G.S. § 1-75.3; First Union Nat’l Bank v. Rolfe, 83 N.C. App. 625, 628, 351 S.E.2d 117, 119 (1986) (noting constitutional “mandate[] that a party be given notice and an opportunity to be heard before he can be deprived of a legal claim or defense”). 3. See G.S. § 1A-1, Rule 4(j)(1)-(9); see also G.S. §§ 1-75.3(b)(1); State ex rel. Desselberg v. Peele, 136 N.C. App. 206, 208, 523 S.E.2d 125, 127 (1999). 4. See, e.g., Senate Commission on International Rules of Judicial Procedure – Establishment, S. REP. NO. 2392 at 3 (1958), reprinted in 1958 U.S.C.C.A.N. 5201, 5202-03 (stating that the “extensive increase in international, commercial and financial transactions involving both individuals and governments and the resultant disputes, leading sometimes to litigation, has pointedly demonstrated the need and desirability for a comprehensive study of the extent to which international judicial assistance can be obtained”). Administration of Justice Bulletin No. 2004/07 December 2004 variety, from product liability suits by U.S. residents process, which can often be accomplished with relative against foreign defendants,5 to international business ease, international service of process has been disputes between U.S. and foreign companies,6 to described as “complex and time consuming,”10 and personal injury and other suits by U.S. residents based “bordered on all sides with fatal pitfalls.”11 Not on a foreign defendant’s conduct while in the United surprisingly, then, courts are frequently called upon to States.7 Likewise, the ease of international travel, not decide the validity of a party’s attempts to serve an to mention the presence of members of the U.S. Armed adversary located overseas.12 Forces overseas, lends an international dimension to disputes, such as paternity, divorce, and child custody This bulletin addresses some commonly- and support, more traditionally viewed as “domestic” encountered issues related to international service of in character.8 process, particularly those arising under the Convention on the Service Abroad of Judicial and As in a lawsuit between domestic parties, the court Extrajudicial Documents in Civil or Commercial may not render a judgment against a party located Matters, also known as the Hague Convention (the outside the United States unless that party has been “Convention”).13 Although the bulletin provides an properly served.9 But unlike domestic service of exercise personal jurisdiction over, a party subject to 5. See, e.g., Warzynski v. Empire Comfort Sys., Inc., jurisdiction under the “long-arm” statute if the party has been 102 N.C. App. 222, 401 S.E.2d 801 (1991); Hayes v. Evergo served “pursuant to” or “in accordance” with “Rule 4(j) or Tel. Co., Ltd., 100 N.C. App. 474, 397 S.E.2d 325 (1990); 4(j1).” Service outside the U.S., however, is authorized by Bush v. BASF Wyandotte Corp., 64 N.C. App. 41, 306 S.E.2d Rule 4(j3), to which these sections do not refer at all. 562 (1983). This seems to be an oversight. G.S. §§ 1-75.3 and 1- 6. See, e.g., Koehler v. Dodwell, 152 F.3d 304 (4th 75.6 were enacted in 1967. See 1967 N.C. Sess. Laws c. 954 Cir. 1998); Eplus Technology, Inc. v. Aboud, 155 F. Supp. 2d § 2. Rule 4’s international service provisions were added 692 (E.D. Va. 2001). two years later, as Rule 4(j)(9)d, see 1969 N.C. Sess. Laws c. 7. See, e.g., Hocke v. Hanyane, 118 N.C. App. 630, 895 § 4, and therefore fell within the existing references in 456 S.E.2d 858 (1995); Randolph v. Hendry, 50 F. Supp. 2d these sections to “Rule 4(j).” The international service 572 (S.D. W. Va. 1999). provisions were later moved to 4(j3). See 1981 N.C. Sess. Laws c. 540 § 3. But although in 1995 the long-arm statute 8. See, e.g., Tataragasi v. Tataragasi, 124 N.C. App. was amended to include a reference to Rule 4(j3), see 1995 255, 477 S.E.2d 239 (1996); see also Maj. Wendy P. Daknis, N.C. Sess. Laws c. 389 § 1 (amending G.S. § 1-75.4), no Home Sweet Home: A Practical Approach to Domicile, 177 such amendment was made to G.S. §§ 1-75.3 or 1-75.6. Mil. L. Rev. 49, 62 n.75 (2003) (noting that, in 2001, the Compare 1983 N.C. Sess. Laws c. 231 (amending G.S. §§ 1- U.S. Army’s Legal Assistance Offices assisted over 29,000 75.3, 1-75.4, and 1-75.6 to add a reference to Rule 4(j1) after clients with divorce-related issues); Maj. Alan L. Cook, The provisions governing service by publication, formerly in Armed Forces as a Model Employer in Child Support Rule 4(j), were moved to 4(j1)). Enforcement: A Proposal to Improve Service of Process on Military Members, 155 Mil. L. Rev. 153, 153-54 & nn. 4-6 10. Loral Fairchild Corp. v. Matsushita Elec. Indus. (1998) (noting varying estimates that the federal government, Co., Ltd., 805 F. Supp. 3, 5 (E.D.N.Y. 1992). and primarily the Department of Defense, employed up to 11. Gary B. Born, International Civil Litigation in 100,000 parents who were in arrears on child support United States Courts 757 (Kluwer Law Int’l, 3d ed. 1996) obligations). (quotation omitted) [herein, “Born”]. 9. See Warzynski, 102 N.C. App. at 228, 401 S.E.2d 12. See, e.g., Hayes, 100 N.C. App. 474, 397 S.E.2d at 805 (evaluating validity of service on defendant located 325; Warzynski, 102 N.C. App. at 222, 401 S.E.2d at 801; outside U.S.). Hanyane, 118 N.C. App. 630, 456 S.E.2d 858; see also G.S. In addition to service of process, or an exemption to § 1-75.11 (requiring court to verify proper service and service, the court must have personal jurisdiction over the existence of personal jurisdiction before entering judgment defendant. North Carolina’s “long-arm” statute, G.S. § 1- against non-appearing defendant). 75.4, identifies the circumstances under which courts have 13. See Convention on the Service Abroad of Judicial personal jurisdiction over parties who have been served with and Extrajudicial Documents in Civil or Commercial process “pursuant to Rule 4(j), Rule 4(j1), or Rule 4(j3)” of Matters, Done at the Hague November 15, 1965 (entered into the North Carolina Rules of Civil Procedure. G.S. §§ 1-75.3 force for the United States February 10, 1969), 20 U.S.T. and 1-75.6 authorize courts to enter judgment against, or 361; T.I.A.S. 6638; 658 U.N.T.S. 163; 28 U.S.C. (Appendix 2 December 2004 Administration of Justice Bulletin No. 2004/07 overview, it does not purport to be an exhaustive guide International service of process to the Convention or to international service of process under North Carolina law generally.14 Instead, the bulletin focuses on the interaction between the Convention and Rule 4(j3) of Any inquiry into the validity of international service of the North Carolina Rules of Civil Procedure, which process begins with Rule 4(j3) of the North Carolina authorizes service of process “in a place not within the Rules of Civil Procedure. Because Rule 4(j3) is nearly United States.” In particular, the bulletin focuses on identical to federal Rule 4(f), federal cases are useful several issues that judges commonly encounter, interpretive guides.15 including: Rule 4(j3) establishes three basic categories of • when and where the Convention applies; international service methods.16 First, Rule 4(j3)(1) directs parties to use an “internationally agreed means” • what methods of service the Convention authorizes; of service if one is available.
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