Service of Process

Service of Process

Service of Process in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Section 1608(a) of the FSIA provides four methods of service of process on a foreign state:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or (2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or (3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or (4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

Developments

FSIA § 1608(b) similarly provides a hierarchy for methods of service of process on an agency or instrumentality of a foreign state. This section discusses a selection of cases in 2011 in which the interpretation of FSIA § 1608 was at issue.

Service of Process in 2013

United States views on international law [1] in relation to Service of Process: Section 1608(a) of the FSIA specifies the proper methods of service of process on a foreign state. Section 1608(b) similarly identifies the proper methods of service on agencies or instrumentalities of a foreign state.

Some Aspects of Service of Process

On February 4, 2013, the United States filed a motion to clarify or vacate an order of the U.S. District Court for the Northern District of Georgia regarding service in a case brought against multiple defendants, including the Nigerian Embassy. Ahmed v. Attorney General of the United States et al., No. 1:12-CV-0122-RLV (N.D. Ga.). The court had issued an order regarding service that did not distinguish the Nigerian Embassy from the other listed defendants, resulting in an attempt by the pro se plaintiff to address a service package to the Consulate General of Nigeria in New York for delivery by the U.S. Marshals Service. The United States sought clarification that the court's order did not require the Marshals Service to effect service of process on the Nigerian consulate or the defendant Embassy, and in the alternative sought vacatur of any such requirement. Excerpts below are from the brief in support of the U.S. motion. The motion with supporting memorandum is available in full at (Secretary of State website) state.gov/s/l/c8183.htm. On February 25, 2013, the court granted the motion for clarification, explaining that its previous order regarding service was not intended to require service on the Nigerian embassy or consulate.

Developments

If the Court's prior order is, in fact, intended to require the Marshals Service to effect service on a Nigerian consulate or the Nigerian Embassy, the proper course is to vacate any portion of the order imposing such a requirement. Both domestic and international legal authorities compel the Court to vacate that service requirement.

Details

First, the service requirement would be inconsistent with the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611. Both the Consulate General of Nigeria and the Nigerian Embassy are considered foreign states, see Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987), and thus the exclusive procedures for effecting service of the summons and complaint are set forth in 28 U.S.C. § 1608(a).

More

The methods of service set forth in § 1608(a) are mandatory, require strict compliance, and cannot be replaced with other procedures. See Magness v. Russian Fed'n, 247 F.3d 609, 615 (5th Cir. 2001) (concluding that “the provisions for service of process upon a foreign state . . . outlined in section 1608(a) can only be satisfied by strict compliance” and collecting cases holding the same); Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994) (stating that the procedures of § 1608(a) are “exclusive” and that “strict adherence to the terms of 1608(a) is required”); Finamar Investors Inc. v. Republic of Tadjikistan, 889 F. Supp. 114, 118 (S.D.N.Y. 1995) (discussing § 1608(a) and stating that “[w]hether or not respondent received actual notice of the suit is irrelevant when strict compliance is required”).

More

Section 1608(a) sets forth four potential methods for service: (1) pursuant to a special arrangement between the parties; (2) in accordance with “an applicable international convention on service of judicial documents”; (3) if methods (1) or (2) are unavailable, then by “sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned”; and (4) if service cannot be made within 30 days using method (3), then by: sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the U.S. Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted. 28 U.S.C. § 1608(1)-(4). These four methods are ordered hierarchically, and each is “available only if the previously enumerated options are in some way foreclosed.” Democratic Republic of Congo v. FG Hemisphere Assocs., LLC 508 F.3d 1062, 1063 (D.C. Cir. 2007); see also Magness, 247 F.3d at 613.

Service of Process in 2013 (Continuation)

United States views on international law [1] in relation to Service of Process: As relevant here, none of the four methods of service permit the Marshals Service to deliver the summons and complaint directly to the Consulate General of Nigeria in New York, or for that matter to the Nigerian Embassy. An order requiring the Marshals Service to perform such an act would therefore be inconsistent with the FSIA, and even if followed would not result in either entity being a proper defendant before this Court. To avoid a conflict with domestic law, therefore, the Court should vacate any portion of its order requiring the Marshals Service to perform such service.

More about Service of Process

Moreover, any such service requirement would also be inconsistent with international law. Specifically, an order requiring the Marshals Service to deliver the summons and complaint to a Nigerian consulate would run contrary to the Vienna Convention on Consular Relations (“VCCR”), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. 6820 (entered into force with respect to the United States Dec. 13, 1972).

Development

Under the VCCR, to which both the United States and Nigeria are parties, a country's consular premises are inviolable such that “[t]he authorities of the receiving State shall not enter … the consular premises” except with consent. Id. art. 31(2). Directing service of process on consular premises would be contrary to this inviolability. See Restatement (Third) of Foreign Relations Law § 466 note 2 (1987) (“Service of process at . . . consular premises is prohibited.”); see also Sikhs for Justice v. Nath, 850 F. Supp. 2d 435, 441 (S.D.N.Y. 2012).

Details

Under the VCCR, therefore, the Marshals Service cannot intrude upon the consular premises in an effort to effect service. See also VCCR art. 43(1) (“Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.”). Any requirement that the Marshals Service deliver service of process to a Nigerian consulate should therefore be vacated.

More

International law would similarly prohibit the Marshals Service from effecting service on the Nigerian Embassy, which is the entity named as a defendant in Ahmed's complaint. The Vienna Convention on Diplomatic Relations (“VCDR”), Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. 7502 (entered into force with respect to the United States Dec. 13, 1972)—to which both the United States and Nigeria are parties—provides that “[t]he premises of the mission shall be inviolable.” See Art. 22(1). Thus, a court order requiring service of legal documents upon an embassy conflicts with Article 22(1) of the VCDR. See also Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737, 748 (7th Cir. 2007) (“[S]ervice through an embassy is expressly banned both by an international treaty to which the United States is a party and by U.S. statutory law. The Vienna Convention on Diplomatic Relations …prohibits service on a diplomatic officer.”). Any requirement to effect service on the Nigerian Embassy should therefore also be vacated.

Service of Process

In relation to the international law practice and Service of Process in this world legal Encyclopedia, please see the following section:

Foreign Relations

About this subject:

Alien Tort Claims Act and Torture Victim Protection Act

. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Sarei v. Rio TintoThere is information about the Complaint and Service of Process in this global legal encyclopedia.

Resources

See Also

  • Civil Procedure
  • Federal Courts

Resources

See Also

  • Privileges
  • Immunities
  • Foreign Sovereign Immunities
  • Service Of Process

Resources

Notes

  1. Service of Process in the Digest of United States Practice in International Law

Resources

Notes

  1. Service of Process in the Digest of United States Practice in International Law

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