March 12, 2004
Counselor to the Minister
Ministry of Justice
Republic of Slovenia
Zupanciceva 3, 1000
Re: Explanation of United States Domestic Law Regarding Forwarding Authority Under Article 3, Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
Dear Ms. Bucar:
We have received your letter dated January 26, 2004, requesting the views of the U.S. Department of Justice as to Article 3, of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Specifically, you inquire about the competence of private attorneys under United States domestic law to forward service requests under this Convention to Central Authorities of party states. We are grateful for the opportunity to provide the Ministry of Justice with this information.
Article 3 of the Hague Service Convention provides that a request for service should be transmitted to the Central Authority of the state addressed by the “authority or judicial officer competent under the law of the State in which the documents originate.” Under the domestic law of the United States this provision is interpreted as authorizing an attorney as an officer of the court to execute the request. See Epstein & Snyder, International Litigation: A Guide to Jurisdiction, Practice & Strategy, Sec. 4.04 (1994 Supp.). Specifically, the Federal Rules of Civil Procedure, which govern procedural aspects of litigation within our federal courts, provide in Rule 4(c), first, that “[t]he plaintiff is responsible for service of a summons and complaint…” and, second, that such service “may be effected by any person who is not a party and who is at least 18 years of age.” Rule 4(c) has been interpreted as authorizing attorneys to forward service under Article 3 of the Hague Service Convention. FRC International, Inc. v. Taifun Feuerloschgeratebau und Vertriebs GmbH, 2002 WL 31086104 at 9, (N.D. Ohio, 2002); Marshhauser v. The Travellers Indemnity Co., 145 F.R.D. 605 (S.D. Fla. 1992). In addition, many state courts have similar provisions which make clear that attorneys are competent to provide service in litigation. Beyond that, in the United States attorneys representing parties in litigation are deemed to be officers of the court, Holloway v. Arkansas, 435 U.S. 475 (1978), and, as such, come within the terms of Article 3. That attorneys are authorized to forward requests for service under the Hague Service Convention, is made further clear by Rule 4(h)(1) of the Federal Rules of Civil Procedure, which specifically provides, in part, that service upon individuals in a foreign country may be effected “by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents....”
We might also add that the competence of attorneys within the United States to effect service under Article 3 of the Convention is discussed in the Draft Handbook on the Operation of the Hague Convention, at page 32 prepared by the Hague Conference. The Draft Handbook specifically states: “Under [U.S.] federal procedural law, a private attorney is authorised to serve a judicial document in the United States of America. Accordingly, he or she also has authority to send a request for service to a foreign Central Authority.” See Provisional Version of the New Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, p. 32, available at ftp://ftp.hcch.net/doc/lse_pd01e.pdf.
We hope this is of assistance to the Ministry of Justice. We would be pleased to provide you with any further information in this regard that you may need.
ROBERT M. HOLLIS
Office of International Judicial Assistance