Bill, thanks very much for the comment. You’re right that plaintiffs in federal court serve a foreign parent company by serving a US subsidiary all the time. I think you would be firmly in the camp of people who say that if you deliver the summons to someone in the United States, you are serving process in the United States, even if the company you are serving is in a foreign country and has no presence here (except for a subsidiary). You may be right, but if you are right, then my point is that a lot of cases under FRCP 4(f)(3) are wrongly decided, because Rule 4(f) shouldn’t apply if service is occurring in the United States. I am not sure what I think is the right answer.

Ted raises a good question about service in federal court. Because Rule 4(e)(1) permits service in the United States by following state law, the forms of substituted service permitted under state law are also available in federal court. In California, for example, a plaintiff in federal court can serve a foreign parent company by serving its subsidiary in California. Plaintiffs do this all the time.

But as Ted points out, the Federal Rules authorize additional means of service in federal court, including any means ordered by the court that is not prohibited by an international agreement under Rule 4(f)(3). I don’t see how state rules on substituted service would bind a federal judge under Rule 4(f)(3). So, a federal judge in New Jersey should be able to order substituted service on a subsidiary under Rule 4(f)(3) even though New Jersey courts have rejected such substituted service under state law. (My article didn’t look at service on counsel under state law. But whatever that state law is, it similarly would not bind a federal judge under Rule 4(f)(3).)

What does bind federal judges is the requirement of due process (under the Fifth Amendment for federal courts). This means that service under Rule 4(f)(3) must provide constitutionally adequate notice under Mullane. As explained in the article, that will not typically be a problem when a court orders substituted service on an affiliated company. Nor would it be a problem for service on counsel. It would only be a problem if a court were to order substituted service on someone unlikely to inform the defendant of the suit, like a state secretary of state, and it is hard to imagine a federal court doing something like that.