International service of process can be complicated, as there are many laws and regulations that must be complied with to effectuate proper service. A recent decision out of the U.S. District Court for the Southern District of California may provide a way for plaintiffs who are having problems regarding serving foreign defendants, according to JD Supra. This decision may be particularly helpful in light of the challenges that have arisen in service of process during the global coronavirus pandemic.

The Rules

Under Federal Rules of Civil Procedure 4(h)(2), a foreign corporation may be served in any way that is provided for foreign individuals under FRCP 4(f). The exception to this is personal service. Under Rule 4(f), there are multiple methods by which foreign process of service may be served. These include those that are authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the “Hague Convention”) and those prescribed by the foreign sovereign’s laws regarding service of process. Rule 4(f)(3), however, provides a “catchall” allowing service on a foreign party by “other means not prohibited by international agreement, as the court orders.” This service can happen a number of ways, including ordinary mail to the defendant’s last known address, by publication, by delivery to the defendant’s attorney, or via email. Seeking court’s approval to serve “by other means” under 4(f)(3) may avoid the procedural and jurisdictional delays commonly experienced in service through a foreign country’s legal system or through the Hague Convention.

Allied Rubber and Gasket

The plaintiff in  Victaulic Company v. Allied Rubber & Gasket Co., Inc.,was dealing with delays serving a Chinese defendant through the Chinese Central Authority in compliance with the Hague Convention. Foreign service of process had been unsuccessful, causing the plaintiff to seek five separate extensions from the court of the service deadline. On the sixth request for extension, plaintiff provided a statement from the Ministry of Justice for China that service of process can take over two years to complete and, on average, proof of service is returned between one to five months after date of service. The plaintiff further provided a report by the international law community regarding concerns that the Chinese Central Authority had stopped executing U.S. service of process requests. In addition, the service of process delays were further complicated by the global pandemic.

The court determined that service under Rule 4(f)(3) was necessary, based on the facts of the case. The inability to serve the defendant, albeit through no fault of the plaintiff, in the case had caused almost three years of delay in the case. So as to not require service in a manner prohibited by the Hague Convention, of which China is a party, the court required the plaintiff to publish a notice of the lawsuit in the electronic version of the Wall Street Journal Asia for four straight weeks as well as serve the defendant by electronic mail using the email address provided on its website, but not before voluntarily withdrawing the complaint without prejudice.

Process of service can be complicated, and international process of service can be even more so. Not surprisingly, issues with international service of process can cause significant headaches when the party initiating the lawsuit is dealing with two or more countries. Indeed, an attorney may ask the process server to purchase plane tickets so that an individual may be served in a terminal before he or she leaves to another country. While this can be an extreme example, there can be a serious amount of time, effort, and costs involved in the international process of service industry. Additionally, there are times when international service of process is unavoidable, such as in cases involving the collection of a judgment. Below are a few of the biggest issues that parties face when attempting to properly execute international service of process.

 

How to Serve

 

Perhaps one of the easiest issues to solve when it comes to international service of process is how to properly serve internationally. It is critical to know and understand whether a country where service needs to occur is a signatory to the Hague Service Convention (“Convention”) or to the Inter-American Service Convention (“IASC”). It is also important to know whether or not the party seeking a remedy needs a judgment to be enforced. Knowing these issues will help determine how to proceed with service of process.

 

Timing of Service

 

Depending on the type of international service of process, service can take from several months to up to a year. When someone is involved in a lawsuit or has pending legal matters, the parties want the issues resolved as quickly as possible. The general timeline of international service of process is not ideal for most in this situation. Further delays happen when foreign governments and consulates are involved. This is particularly true when the country in which service is being processed are not signatories to any treaties or conventions. This could result in an even longer timeline for international process of service.

 

Thankfully, there are alternatives, such as service via an agent, to seek out a shortened international service of process timeline. Going this route, however, depends upon whether or not the party is expecting a foreign sovereign to enforce a judgment or ruling after service has been completed. If the party initiating the international service expects to use service via agent, then he or she should expect to serve the international process according to the laws and rules of that specific country, which could take even more time.

 

Knowing Applicable Laws

 

While a sovereign may be a signatory to the Convention, this does not mean that the country complies with every portion of the international treaty. This is because a sovereign can refuse to agree to service by mail or alternate service of process and yet still be signatories to the Convention, by simply striking out the portions with which it does not agree.

We can Meet Your Process Service Needs

 

If you need process service help, contact Ancillary Legal today. Our experienced team has experience handling cases in the United States or overseas. Let us help support your litigation needs by contacting us today.

As the coronavirus pandemic continues to infect people across our nation and our governments try to stop the spread, the legal profession keeps getting pushed into uncharted waters. One legal issue that still remains unclear is how service of process will be affected not just for those trying to serve others, but those parties who are being served with lawsuits.

 

Below are some useful tips on how to serve, and how to be served, legal documents during these uncertain times in the midst of the pandemic.

 

For those concerned about serving others:

 

In order to make sure that legal papers are properly and timely served on defendants:

 

  • Check all standing orders, temporary rules, or other guidance from the jurisdiction where service is to take place as new orders are issued almost daily;
  • Monitor the websites and public postings of defendants to be served to have up-to-date information about where service is being accepted since most businesses have had to adjust and service locations may have changed;
  • Ensure that your process server does not leave the legal documents outside of physical offices or with unauthorized personnel as service would not be proper;
  • Be flexible with the defendant to be served when it comes to agreeing to serve via alternate methods that are accepted under the state and federal rules.

For those concerned about receipt of service:

In order to make sure that a defendant is not refusing service in a way that would trigger another service method that could result in lost legal documents:

  • Use a service to act as your registered agent, if you have not done so already, as now is a good time to benefit from these services;
  • Review and confirm that the list of statutory agents registered in each state is up-to-date;
  • Contact your registered agent to make sure there is a process in place to accept service on your behalf—especially in light of all the court orders on the issue;
  • If you cannot accept service at any physical location where a process server may attempt service, post a notice on the door with detailed information, post a list of office that are closed due to coronavirus and cannot accept service on the internet, establish a procedure for routing and reviewing legal documents is service is made on someone at one of those addresses.
  • Make sure there is a procedure for reviewing and routing all mail received by the legal department and its staff, so you do not miss any papers served by FedEx or certified mail.
  • Continue to monitor new court filings to catch lawsuits where plaintiffs argue that service was perfected but the legal documents were lost or misdirected.
  • When possible and desirable, reach out to the plaintiff and offer to waive or accept service via an alternative method.

If parties implement the above tips, the legal process will continue to run as smoothly as possible, considering we are in the midst of a global pandemic.

 

While sometimes the hardest part of serving a defendant to a lawsuit is locating them, sometimes the person is found but outright refuses to accept service. Although not the most ideal way to serve a lawsuit, below are some examples of real-life cases in which the process server had to get creative in order to…

Since our announcement, late last year regarding our new international deposition services, many of you may be curious about just how we accomplish depositions abroad. Here we will describe a few of the tools we use. The main obstacle when undertaking a deposition abroad is the distance.

Bridging the Distance

While you could fly halfway across the world to take down a deposition, this on top of the transcript fees could wind up being quite costly for your client. Enter Video Conferencing! Taking a nod from our sister company, who has embraced video conferencing for US depositions for a number of years now, Ancillary utilizes video conferencing to shorten the distance between deponent and attorney in an affordable way. Ancillary’s extensive knowledge of foreign and domestic laws allow us to properly advise you as to whether your deposition can take advantage of this modern technology.

Handling Exhibits

Now, you may be thinking “I can’t do a video conference deposition. I have exhibits that I need to use!” Not a problem. You can share those exhibits right inside of your video conference in real time with the help of screen sharing. We have even prepared a means for you to digitally mark those exhibits either in real time, or prior to your deposition using Adobe Stamps!

You can download our free template from  ALC’s google drive. Just extract the pdf in the zipped folder and put it in your relative folder to:

C:\Users\[YOUR USER NAME]\AppData\Roaming\Adobe\Acrobat\DC\Stamps

Once the file has been placed there, the stamps will appear in in your Adobe software under the stamps menu in a list named “Ancillary Legal Corporation.”

These stamps will work in both Adobe Acrobat Reader DC and Pro DC. If you do not yet have Adobe software you can download the software from their official download page.

Taking it to the Next Level

If you are an Adobe Acrobat Pro user, you can take advantage of the included feature called “Prepare Form” to customize our exhibit stamp template. Ancillary was easily able to use this feature to prepare a multitude of custom stamps for our Atlanta-based sister company, Elizabeth Gallo Court Reporting’s  many court reporters to utilize during the COVID-19 outbreak.  This feature is easy to use, and can offer you individualized functionality for your stamps.  In this YouTube video, a litigation technology firm explains how you can even use Adobe’s “Prepare Form” to program digital exhibit stamps to automatically fill with the file name for your pdf!

These are just a few of the tools Ancillary has at their disposal to assist you with you with your international deposition. Click here for your free consultation. Ancillary’s staff attorney will review your case and let you know your option for depositions abroad.

When a lawsuit is initiated by a plaintiff against a defendant, the latter must be “served” with the proper documents regarding the legal action. Typically, these documents are served in person; in other words, they are hand-delivered to the defendant. Sometimes, however, the defendant in a lawsuit cannot be found to accept delivery of legal documents. In such a scenario, the federal and state rules of civil procedure allow for an alternative method of service via publication. How Does Service by Publication Work? The process of service that is done by publication may be allowed by a judge’s order. Publication refers to the actual official notification of the defendant by publishing the lawsuit in a newspaper. Not surprisingly, service of process by notice of publication must meet certain legislated guidelines regarding process and format. Service by publication occurs when a summons or other legal document relating to a lawsuit is served by publishing the documents in a general-circulation newspaper. The act of publishing these legal documents gives the defendant “constructive notice.” This is used when the defendant is unknown, intentionally avoiding personal service, or is in hiding. “Constructive notice” includes the assumption that the intended person receives the notice despite it not being delivered in-person. This service of process is only permitted by a judge’s order and after a sworn declaration has been provided to the court affirming a failure to locate the defendant after exercising due diligence. As a result, the court will accept publication as effective service regardless of whether or not the defendant reads the published notice. Types of Service of Process There are three general methods of effectuating service of process on a defendant who is party to a legal action. These include:

  • Personal service,
  • Substituted service, and
  • Service by publication.

Personal service of process happens when the legal documents are provided directly to the person or entity named on the summons, complaint, or petition. Most domestic lawsuits require personal service to establish the defendant was properly served. Substituted service, on the other hand, occurs when the process server is able to serve the named party indirectly. This may include giving documents to another court-approved person–whether family or a friend–or by sending it by mail or dropping it off at the defendant’s place of work. The best first step is to hire a professional process server company to effectuate personal or substituted service. This is because these companies and the process servers they use are specifically trained to locate and serve legal documents on hard-to-find individuals. Once a process server is unable to locate a defendant, the next step is to request a court allow service by publication. We can Help Ancillary Legal can help you with all of your process of service needs, particularly if it has to do with international lawsuits. Filing a legal claim that has international implications is complicated. You do not want your suit dismissed due to improper service. Contact us today to handle all of your service processing needs.

Those who are involved in service of process have difficult work to do. Process servers bear the task of delivering important court documents to individuals and/or entities. Failure to do so properly can ruin a case, particularly if the statute of limitations deadline is near. Many people who are being served with court papers, whether a complaint and summons or subpoena to appear or produce documents, have misconceptions of service of process and as a result challenge delivery. For this reason, it is critical for process servers to be familiar with the governing rules to ensure proper service.

Know the Rules

A process server must know the rules governing service of process. This includes reviewing federal, state, and local laws. Doing so helps the process server to properly meet the needs of the individual(s) being served, the client, and the courts without running afoul of the rules.

Below are several tips all process servers should follow when doing their job to avoid being sued or failing to properly serve.

  • Jurisdiction Matters: Do not Guess the Laws and Rules. To make things even more complicated, each state has its own set of rules, governing laws, and general practices when it comes to service of process. Notably, there are rules that govern how service can be made, days when service is barred, who is allowed to accept service, and other details. If a service process has to cross state lines to attempt to serve someone, it is critical that he or she check the rules in the new state as there may be important differences;
  • Be Sure to Keep Far from the Mailbox. While it is not an actual crime to notice an address that is posted on the side of a mailbox, that is basically as far as a service processor can go. In short, anything else having to do with mailboxes is off limits when it comes to proper service of process. Keep in mind that tampering with another’s mail remains a federal crime. For more information on laws governing the postal code, visit 18 U.S. Code  § 1708;
  • Do Not Act or Disguise Yourself. It is no secret that delivering court documents is a serious matter. That being said, sometimes service processors are forced to take extreme measures in order to reach and properly serve the individual. While creativity in doing so is allowed, a process server should not be deceitful. This is particularly dangerous when he or she pretends to be a police officer or government official as doing so is against the law;
  • Do Not Enter a Place Until Invited. Common sense should dictate that a service processor should not enter a home or property unless and until he or she is invited in. Trespassing, which is entering another’s property without permission, is against the law. So, even if the service processor knows the person is home and not responding, he or she should not try to go inside the property.

While process servers generally work with respect for those whom they are serving with court papers and also with professionalism and integrity when reporting back to a client, doing the work is not easy. Indeed, process servers often have to go to great lengths to serve the documents upon a party. For this reason, sometimes service processors are walking a fine line between complying with the law and breaking the law in order to serve someone.

 

 

The U.S. Court of Appeals for the Federal Circuit recently considered the validity of a $600,000.00 fee award, according to the American Bar Association (ABA) Journal. Under 35 U.S.C. § 285, the prevailing party in a patent infringement action may recover reasonable attorney’s fees in “exceptional cases.” The Case at Hand: In Drop Stop LLC v. Zhu, the company owned a patent for a product preventing items in a car from falling between the front seat and the center console. Drop Stop sent a cease-and-desist letter to the defendants to stop selling a product similar to theirs and alleging copyright infringement. The defendants refused to comply, relying on an attorney’s informal opinion that no infringement had occurred. The defendants failed to disclose the attorney’s disclaimer regarding the informal opinion. Consequently, Drop Stop sued and served five defendants. The defendants defaulted on the lawsuit and moved to set aside the default, arguing improper service. The district court vacated the default, however, noted defendants were unduly delaying litigation. After mediation talks were unsuccessful, defendants added a defense of patent misuse based on the confidential settlement discussions among the parties. The district court struck down the arguments after reviewing the parties’ cross-motions to dismiss. Nonetheless, the defendants raised the same stricken defenses in their cross-motion for summary judgment. They also filed numerous ex parte motions. The district court granted Drop Stop partial summary judgment and the parties subsequently settled. The parties stipulated to entry of judgment in favor of Drop Stop on the remaining infringement claims and the court’s determination of attorney’s fees. The court awarded $600,000.00 in fees, finding the totality of defendant’s actions throughout litigation constituted exceptional circumstances. The Appeals Court: The federal court of appeals affirmed, relying on precedent from the Supreme Court of the United States (SCOTUS) and held a party’s unreasonable conduct may not be necessarily be independently sanctionable, however, can still be exceptional. The appeals court noted defendant’s bad behavior continued throughout every stage of litigation including their reliance on the attorney’s informal non-infringement opinion and removal of disclaimer, purposeful evasion of service, addition of defenses in motions based on confidential settlement talks, late timing of discovery, and unnecessary and prohibited ex parte motions. Not surprisingly, the takeaway here is that when attorney’s engage in bad behavior in litigation they should expect to be on the receiving end of the consequences. Simply put, it should be every attorney’s goal not to unnecessarily anger the judge. The case is Drop Stop LLC, v. Zhu.

Across the country, lawyers are prognosticating that there will be an avalanche of Zantac lawsuits in the upcoming years according to a Law.com report. This prediction is in response to a recent discovery by the U.S. Food & Drug Administration that the heartburn drug contains an ingredient that may cause cancer. This revelation caused Sanofi, the manufacturer of Zantac, to recall the drug. Lawsuits Already Filed: As of now, approximately a dozen lawsuits have been filed against Safoni. These include consumer class actions as well as individual cases. All the cases allege Safoni, as well as other drug manufacturers, were aware that ranitidine – the active ingredient in many heartburn medications – could cause cancer. Studies have shown that ranitidine metabolizes in the body into N-nitrosodimethylamine (NDMA) – a known possible carcinogen. Ranitidine can cause unsafe levels of NDMA in the body. The lawsuits allege the drug manufacturers knew of this risk but failed to disclose it to their customers. According to the FDA, its preliminary testing found NDMA in some ranitidine medicines – including Zantac – but the investigations remain open. The FDA found NDMA in blood pressure and heart failure medicines, such as valsartan, in 2018. The discovery prompted more than 140 lawsuits, which have now been coordinated in multidistrict litigation (MDL) in the state of New Jersey. In the valsartan lawsuits, the allegations are a manufacturing defect. The Zantac lawsuits, on the other hand, will focus on its inherent defect because of how NDMA reacts with the human body. Hundreds of Thousands Affected: Legal analysts predict the litigation that will ensue could be significant, as there are millions of people who take Zantac, which first began selling back in 1983. As of now, four defendants are named in the lawsuits against manufacturers. Moreover, some legal analysts say that because the science linking NDMAs to cancer is strong and Zantac is a widely used drug, the potential for plaintiffs who can qualify in a class action lawsuit is in the hundreds of thousands. It is predicted that the lawsuits will dwarf what is happening against Monsanto for its RoundUp product that has been linked to cancer. While the FDA disclosed its investigation of the presence of NDMA in ranitidine medications, it did not go so far as to recommend customers to stop using them. The drugmaker Novartis, however, announced it would stop distributing its generic ranitidine medications. Additionally, CVS, Rite Aid, Walgreens and Walmart voluntarily pulled ranitidine products, including Zantac, off of its shelves. Thereafter, GlaxoSmithKline recalled its prescription Zantac and Sanofi recalled its over-the-counter Zantac. NDMA has been linked to numerous cancers including those of the bladder, colon, esophagus, kidney, liver, prostrate, and stomach.

Earlier this summer, Pope Francis issued a groundbreaking law from Vatican City according to news reports. Specifically, his Holiness issued a law that requires all Catholic priests and nuns across the globe to report clergy sexual abuse to church authorities. The same is true for any cover-ups of sexual abuse by superiors. The move is an important one in the Church’s new effort to hold its priestly hierarchy accountable for its tainted history of failing to protect its followers from clergy sexual abuse. Protections and Guidelines The new church law not only provides guidelines on reporting, but also provides protections for whistleblowers. This includes outlining procedures for how to conduct preliminary investigations when the accused is a cardinal, bishop, or other religious superior. The law also mandates all dioceses worldwide to have a system put in place so that sexual abuse claims are received confidentially. The law also provides a legal framework for bishops in the United States to use when preparing to adopt accountability measures in response to the sexual abuse scandal in America. Thousands Affected Under Pope Francis’s law, the world’s 660,000 nuns and 415, 000 priests are now mandated reporters of sexual abuse. They are required to let church authorities know when they learn or have well-founded motives to believe sexual misconduct is happening. This includes when a cleric or nun is engaged in sexual misconduct with an adult, sexual abuse of a minor, or possession of child pornography. They also must report to church authorities if there is belief that a superior has covered up any of the aforementioned crimes. Of note, the new law does not mandate police reporting. Part of the Vatican’s reasoning is fear of the church in parts of the world where Catholics are a persecuted minority. Before this law, which places a civil reporting requirement, reporting was left up to the conscience of the individual priest and/or nun. That being said, there are no punitive measures for failure to report nor are there sanctions if dioceses fail to comply (although they could be accused of negligence for covering-up a scandal). Help for Victims The Pope also mandated that any victims of the Church reporting sexual abuse must be welcomed as well as offered spiritual, psychological, and medical assistance. Notably, the Vatican fell short of requiring financial reparations to victims. For more information on this issue, click here.