Service By Mail Revisited

A few Letters Blogatory cases of the day have involved service by mail or by private delivery service. Service by mail is inexpensive; it provides pretty good assurance that the defendant has in fact received the papers served; and states need not permit service by mail if they have an objection to the use of postal channels. It’s hard to find a good objection to service of process by mail. Really, in this respect the Hague Convention is a step ahead of the Federal Rules of Civil Procedure, which do not, on their own, authorize service by mail in domestic actions.

As the cases indicate (the Willis case is a good example), there is still a split in the American cases about the meaning of Article 10(a) of the Hague Service Convention. The leading Eighth Circuit case, Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir. 1989), holds that Article 10(a) simply doesn’t permit service of process by postal channels, because it uses the word “send” instead of “serve”, while Article 10(b) and (c) use the word “serve.” The Fifth Circuit has followed suit. Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374 (5th Cir. 2002). But the Second and Ninth Circuit are to the contrary. Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986); Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004). The district courts are all over the place. But this split is a purely American phenomenon, and it exists only in the courts, not in the executive branch or in the secondary literature. The State Department has formally opined that the Bankston case was wrongly decided, see United States Department of State Opinion Regarding the Bankston Case and Service By Mail To Japan Under The Hague Service Convention, 30 I.L.M. 260 (1991). The Report on the Work of the Special Commission(1977) is clearly at odds with the distinction the Bankston case drew between “service” and “sending”:

It was determined that most of the States made no objection to the service of judicial documents coming from abroad directly by mail in their territory. For those States who objected to this channel, a distinction was made between use of the postal channel as the sole method of service and service through the postal channel which was complementary to another means of effecting service.

And the Practical Handbook on the Operation of the Hague Convention says clearly that the drafters of the Convention understood Article 10(a) to permit service of process through the postal channel.

This circuit split, therefore, cries out to be resolved. But if you represent a plaintiff in a district where it is not clear that service by mail under Article 10(a) is permitted, it will rarely if ever be sensible to attempt service by mail instead of service using the central authority, since the risk of having a favorable decision on the merits reversed on this kind of technical grounds will almost always mean that discretion is the better part of valor.  So we cannot hold our breath, and it will continue to make sense to make service of process using the central authority rather than attempt service by mail in many or perhaps most cases.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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