Service of Process Abroad – Who needs diplomats when we have FedEx?

Robert Chilton, HOA AttorneyMost trial lawyers, in initial client conferences, spend little time discussing service of process.  In civil litigation, that is because it is usually a no-brainer: file the lawsuit, deliver it with the summons to your trusted process server and await confirmation of delivery.  But what happens when the defendant only visits Florida while maintaining her residence in another country?

In the old days, service of process in a foreign land required the assistance of diplomats and was an iffy proposition.  It also required quite a bit of money and time to accomplish.  Thankfully the rules have been streamlined and service abroad can, in certain cases, be as simple as a FedEx package.

Florida’s Second District Court of Appeal rendered an opinion in December affirming the use of international service by mail in some instances.  In Portlap Intl. SAS v. Zuloaga, — So. 3d –, 2015 WL 9258496 (Fla. 2d DCA Dec. 18, 2015), the court considered an lawsuit brought by Mr. Zuloaga against his former employer, Portlap USA, LLC and its French majority shareholder, Portlap International.  Mr. Zuloaga, with the able assistance of counsel, served Portlap International at its headquarters in France via Federal Express.  In doing so, he relied on the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (“Hague Convention”).

The Hague Convention is a treaty, adopted in 1965, which allows for service of process of legal documents from one nation to another without the use of consular or diplomatic channels.  It is binding on those nations which have adopted the treaty, though some nations have, while adopting the treaty, registered objections to certain provisions.  Florida recognizes the Hague Convention.  Section 48.194(1), Florida Statutes, allows for service of process on persons or entities outside the United States in conformity with the treaty.

The legal question at issue in Zuloaga, however, was the meaning of Article 10(a) of the Hague Convention.  That articles states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad.” Portlap International argued that Article 10(a) “only permits the mailing of judicial documents after process has been served.”  Zuloaga, — So. 3d –, 2015 WL 9258496 at *1.  Mr. Zuloaga, on the other hand, claimed that Article 10(a) permits service of process by mail.  Id.

The Second District Court of Appeal noted that neither the Florida Supreme Court nor U.S. Supreme Court had ruled on this question.  Federal circuit courts, meanwhile, had split, some agreeing with Portlap International and others with Mr. Zuloaga.  Reviewing those decisions, as well as the text of the Hague Convention and evidence pertaining to the intent and expectations of its signatories, the Court sided with Mr. Zuloaga, ruling that “article 10(a) of the Hague Convention permits service of process by mail.”  Zuloaga, — So. 3d –, 2015 WL 9258496 at *5.

In other words, so long as the foreign nation in which a defendant resides or is headquartered has joined the Hague Convention and not objected to Article 10(a), said defendant can be served with by mail.  Although bad news for businesses specializing in personal service of foreign legal documents, this decision is great news for clients who would otherwise face longer delays and greater expense in their pursuit of justice.

Post Date: March 23, 2016

By: Robert C. Chilton

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