Case of the Day: Charleston Aluminum, LLC v. Energomex, S.A. de C.V.

I love today’s case of the day, Charleston Aluminum, LLC v. Energomex, S.A. de C.V. (D.S.C. 2013), because it deals with the rarely-construed Article 3 of the Hague Service Convention. Charleston Aluminum sued Energomex, a Mexican company; the facts of the case are not apparent from the decision. Charleston filed a “motion for Hague service,” requesting that the clerk “sign and affix an apostille to Spanish language versions of the summons and complaint … and forward these documents to the appropriate Mexican Central Authority for service on Defendant.” Charleston Aluminum apparently believed that the Hague Service Convention “requires that the court effectuate service of process.”

Of course this is wrong. Article 3 of the Convention provides:

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.

Who is a competent person under US law to transmit a request for service of process to a foreign central authority? Here is an excerpt from § 2.3.4(b) of International Judicial Assistance (MCLE 2012):

In an action in federal court, the attorney for the plaintiff should be able to forward the request to the foreign central authority, because under Fed. R. Civ. P. 4(c)(2), the attorney is authorized to serve process. See Greene v. Le Dorze, No. CA 3-96-CV-590-R, 1998 U.S. Dist. LEXIS 4093 (N.D. Tex. Mar. 24, 1998); Marschhauser v. Travelers Indem. Co., 145 F.R.D. 605 (S.D. Fla. 1992). The United States, in its response to the Hague Conference’s 2003 questionnaire, has stated that “any court official, any attorney, or any other person or entity authorized by the rules of the court” may forward the request to the foreign central authority.

Judge Seymour, citing both Greene and Marschhauser, squarely held that an attorney is competent under Article 3. A nice, concise decision.

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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