Case of the Day: Brown v. Tamas

The case of the day is Brown v. Tamas (Cal. Ct. App. 2019). Here is how the decision begins:

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters sets the rules for service of judicial documents in foreign countries. When the Probate Code requires delivery of notice, as opposed to service of notice, on an individual in a foreign country, does the Hague Service Convention apply?

That is a good question! It is one we have addressed before, most recently last month in a post on the Third Circuit decision in G2A v. United States. American courts tend to say, as the court in today’s case said, that the Convention applies only to service of process, where “process” most commonly is a summons. But that view is difficult to square with the Convention itself, which applies to the transmission of all judicial documents, and to service of extrajudicial documents, too. The Practical Handbook (4th ed.) ¶ 77 defines “judicial documents” to include “writs of summons, the defendant’s reply, decisions and judgments delivered by a member of a judicial authority, as well as witness summons (subpoenas), and requests for discovery of evidence sent to the parties even if these are orders delivered as part of evidentiary proceedings.” Some of these (summonses, subpoenas) are clearly “process,” and some of them (the defendant’s reply, requests for discovery of evidence) clearly are not. In general, any “instruments of contentious or non-contentious jurisdiction,” and any “instruments of enforcement” are judicial documents. Courts that focus on the word “serve,” used in the Convention, to show that the Convention refers to service of process, are not on the right track in my view; we use the word “service” to refer both to service of process in the strict sense and, as in FRCP 5, to transmission of all documents in a lawsuit.

In cases where both parties are represented by counsel, there usually is no issue about the service of documents after the summons, because under FRCP 5 or similar rules, those documents are served on counsel, who always or almost always will be in the United States. But in cases where a document after the summons really does have to be sent abroad, it seems to me that the document must be transmitted by a method authorized or permitted by the Convention, because te Convention is exclusive when it applies.

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