A Japan service of process puzzle for you.

Here is something I want to put out to the greater community.

There has been a lot of discussion about the Hague Convention when it comes to the issue of child abductions in bi-cultural families with feuding or divorced parents. The Japanese spouse (usually the wife) takes off with the kids for Japan. Because Japan didn’t ratify the Hague Convention, the left-behind parent does not have much recourse except to protest for years on end, and hope someday to get justice.

Well, there are other Hague Conventions. One involves international standards for the service of legal process. It is from 1965, and was ratified by Japan in 1970.

Article 10(a) of the Convention permits a foreign defendant to be served by mail, which courts have taken to be international registered mail (pink card mail), and even DHL and Federal Express. It isn’t clear if mailing by the plaintiff is OK; in some service-by-mail situations, it isn’t, and must be done by the clerk of the court. But in some, direct service is fine. The Ninth Circuit courts seem to be some.

Another alternative is to serve a Central Authority, which is set up for the purpose of serving nationals within that country. There is usually no charge, but the documents have to be translated; and it isn’t clear that all further correspondence would have to go through the same Central Authority.

Neither the U.S. nor Japan objected to Article 10(a) mail service, but Japan did note that it would not honor a judgment based off such service if it determined that the Japanese resident’s rights weren’t respected.

Art. 10(a):

No opposition

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”

“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”

This would set up a situation where you might get a judgment, only to have it not be enforceable in Japan. But if you use the Central Authority, you simply invite delays.

You can always ask the defendant to waive service in a U.S. court; but, practically, who is going to do that, when they can just dodge you?

Here’s where it gets sticky. Say you have a U.S. district court filing, a summons and complaint. Federal Rules of Civil Procedure, Rule 4(f) permits you to serve via the Hague Convention, but some districts require that the clerk be the one to mail the filing and to receive the pink card. Others say that, where a country has agreed to the Hague Convention, the clerk will not accept the package, and essentially, you must send it yourself. [Update 7/29/11: Southern District of New York may have changed this rule in the past month. It isn’t clear, though, because their new instructions have Japan as objecting to Article 10(a), when it’s clear from the Hague site and this case, that Japan did NOT object to 10(a). I wish they’d put a fix on that finally.]

In others–particularly the District of New Jersey–sending by DHL is just fine, apparently. The whole idea is that the foreign defendant be given notice and the proper chance to respond.

Now, if you don’t really care that a judgment you get be enforced by Japan (since it’s [versus] a big international company where the Japanese defendant can be gotten by a judgment creditor very easily in the States), do you worry about pink card service?

The Japanese say they do not object to Article 10(a), but might not enforce a judgment.

The United States says send via the Hague Convention, but the particular U.S. District Court says don’t bother the clerk, if the defendant is in a country that adopts Article 10(a).

Remember that the defendant is a wholly-owned Japanese subsidiary of a U.S. headquartered multinational. The board of the subsidiary serves at the will of the U.S. multinational. The officers of the subsidiary are subject to the Friendship, Commerce and Navigation treaty, where, by treaty, they could be removed from their jobs simply because they’re not American.

It sounds like you send pink card service, and then expect that you get a responsive pleading in 21 days, right? Then, if you don’t see one, ask for a default judgment.

[Update 5/7/12: As mentioned over at Letters Blogatory, service of process was good in my case. Lawyers (and others) reading me should remember my caution to do your own homework!]

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4 thoughts on “A Japan service of process puzzle for you.

  1. I discussed this with a MoFo litigation partner once, who told me that the situation is a sort of catch-22: there is no precedent conclusively showing whether service by mail is valid in Japan, and this is because nobody wants to risk their entire lawsuit on finding out whether service by mail will be valid in Japan — so everyone uses the Hague procedure.

    Under the Hague procedure in Japan, the summons gets sent to the local district court, which sends the defendant a letter telling them to come pick it up. I am not sure what happens if the defendant ignores the letter…

    • This is why I avoided that route.

      Under Article 10(a), sending the document by mail is OK in courts of the Second Circuit. Service of process has been included as part of “sending”. This is the Ackermann case from 1986.

      The Southern District of New York will not accept papers for mailing to any country that has signed the Hague Convention and ratified 10(a). Japan signed it. So the mailing service has to be done directly by the plaintiff or by someone else. (Hague does not specify.) It can’t be the U.S. Marshall, because they don’t do that for Hague countries.

      Moreover, going through the alternative, which is Hague Article 5, requires the documents to be translated. Well, the documents were never in Japanese to begin with—the contracts were in English. It seems strange that companies who made contracts in English, and transact in English, would suddenly need them to be rendered in Japanese. They wrote the English. As drafters, they must know what they wanted to say in it.

      My feeling is that, since the Japanese corporation is, in fact, the 100% wholly-owned subsidiary of a U.S. corporation, it seems it would be hard to deny that its “rights” were fully respected by receiving process through the mail. Moreover, since, from time-to-time, the subsidiary is the creditor of the parent, which is in Westchester County, it would not be too hard to get a garnishment on transfers to Japan, if Japan’s own collection systems demurred.

  2. Pingback: Working through IBM’s 11 objections. | Hoofin to You!

  3. Pingback: Pennsylvania Superior Court nixes the Japan service of process dodge. | Hoofin to You!

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