The case of the day is Lewis v. Dimeo Construction Co. (D. Mass. 2014). James Lewis sued Hilti Corp., a Liechtenstein corporation, for negligence in the manufacture and design of a “powder actuated tool,” and his wife, Nicole, sued Hilti for loss of consortium. Lewis served process on Hilti via registered mail and received a signed return receipt. Hilti challenged the service, and Lewis moved for an order approving the service nunc pro tunc, or in the alternative granting leave to re-serve the summons and complaint by registered mail under FRCP 4(f)(3). Liechtenstein is not a party to the Hague Service Convention.

Under FRCP 4(f)(2)(C)(ii), service by mail is permissible “unless prohibited by the foreign country’s law,” but only if the mail is addressed and sent by the clerk. That didn’t happen here, and the judge concluded that Lewis had failed to comply with the rule. So the question was not whether the service was proper—Lewis conceded it was not—but whether the court could approve it under FRCP 4(f)(3) nunc pro tunc: whether the court could retroactively bless it.

While the judge recognized that some courts, e.g., the Ninth Circuit, did not permit approval of alternate means of service under FRCP 4(f)(3) nunc pro tunc, he cited a handful of district court decisions to the contrary, and he held that the more liberal view was correct. I think the Ninth Circuit’s view is better. One of the purposes of FRCP 4(f)(3) is to try to ensure that the United States accords comity to foreign states. If US litigants can go abroad and undertake methods of service that may offend a foreign state’s public order or sovereignty, without at least first getting the approval of a US judge, then it is more likely than it would otherwise be that some buckaroos will stick their fingers in a foreign state’s eye.

I think the judge’s laissez faire attitude towards FRCP 4(f)(3) is reflected in his approach to the more central question, namely whether Liechtenstein law forbade service by mail. Hilti submitted an affidavit stating:

Direct service by a foreign court or private individual or legal entity on a Liechtenstein subject or body corporate can be punished under Article 2 of the State Protection Act of 14 March 1949 … as it is in breach of Liechtenstein Public Law and Order and the territorial sovereignty of the Principality of Liechtenstein.

The statute referred to provides:

Whoever undertakes to act on behalf of a foreign country without being permitted to do so, on the territory of Liechtenstein, though such acts would be subject to the competence of an authority of public officer, or supports such [unpermitted] acts, will be punished —

Sounds pretty good, no? In any case, Lewis apparently had no countervailing affidavit. But the judge rejected Hilti’s argument. He reasoned that Hilti proceeded from a false premise. In the United States, a party does not serve process “on behalf of” the United States, and thus the Liechtenstein statute should not come into play.

I have to say I think the judge missed the main point here. The question isn’t how the United States conceives of service of process. The question is how Liechtenstein conceives of service of process. I have no expertise on Liechtenstein law, but I’ll assume for present purposes that Liechtenstein takes the usual civil law view that service of process is an exercise of jurisdiction that may only be performed on its territory by its competent officers.

Lewis claimed that he served process by mail rather than via a letter rogatory in order to avoid substantial delay. Fair enough, but unless I had an opinion of Liechtenstein counsel in my pocket, I would rather bear the risk of delay than bear the risk of litigating the matter to a conclusion in the United States and then finding it difficult to obtain recognition of the judgment in Liechtenstein on the grounds that the US court had never properly acquired jurisdiction! Of course, it may be that Lewis has thought this through and decided that he would be able to enforce the judgment in the United States, in which case he made the right strategic choice.