The case of the day is ECS Brands, Ltd. v. Brubeck (D. Colo. 2024). ECS sought confirmation of an arbitral award against Michael Brubeck, who resided in the Czech Republic. It moved for an order directing the clerk to sign a request for service under the Service Convention.

Under the Convention (art. 3), a request for service must be forwarded by an “authority or judicial officer competent under the law of the State in which the documents originate.” The law of the state of origin determines competence. The US position is liberal:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. The United States Central Authority plays no role in service requests involving persons or parties located abroad in private litigation matters and such requests are transmitted by the forwarding authorities in the United States directly to the requested State.

It used to be that some foreign central authorities balked at executing requests for service signed by US lawyers. That’s understandable, because in most states lawyers do not make requests under the Convention. The Special Commission has helped dispel the problem in conclusions and recommendations, for example, C&R 86 of 2024 (“The SC recalled that it is for the law of the requesting State to determine the competence of the forwarding authorities (Art. 3)”) and a similar C&R in 2003. So when I was still handling service matters myself, I would often ask a clerk to sign a request.

Nowadays my sense is that is less necessary or useful, but it is nevertheless surprising to see a court deny a request to have a clerk sign the request, as the court did here. Perhaps (I do not know) the central authority in the Czech Republic has been reluctant to accept requests forwarded by American lawyers?

I suspect the reason for the decision is not so much about the request for the clerk to sign the form, which in my experience anyway typically doesn’t require a motion, but the other odd things ECS requested. It wanted the clerk to provide certified copies of the papers (it’s not necessary to serve certified copies, and in any even you don’t need to make a motion to get certified copies of papers; you just need to ask and pay the fees) and to “correlate” the certified copies with “yet-to-be-provided “certified … translations,” and then to send them abroad via certified mail. This kind of request, which is out of the ordinary and maybe somewhat onerous, is likely to get a judge interested in shielding the clerks.

Counsel who are serving documents abroad and aren’t expert in it ought seriously to consider outsourcing. That’s not a pitch for business. Seriously, don’t call me, I will thank you but refer you elsewhere, most likely to Viking Advocates, who in my view are the real experts on service abroad in practice.