Don’t Bother Avoiding a Process Server

By Nelson Tucker

Isn’t it amazing that some people think that if they avoid service of process that a lawsuit filed against them will go away?  Litigation will not disappear unless it is either settled or the time for service elapses.  Avoiding service usually makes things worse and can result in additional costs to the defendant while evasion only delays the inevitable.

 

How do I know?  I have a registered process server for the past 35 years.  While the vast majority of services are routine, a few pose some significant challenges in getting them personally served.

 

[“You’ll never be able to serve me personally!” claimed the defendant. 

The next evening he was served leaving his favorite restaurant with his family.]

 

Some defendants are skilled at avoiding service.  Many are experienced because of the number of lawsuits filed against them. For example, a celebrity was contacted through his Twitter account and was advised that he would be served in public unless he agreed to a confidentially arranged service. “You’ll never be able to serve me personally!” claimed the defendant.  The next evening he was served leaving his favorite restaurant with his family.

 

Here are the primary methods for completing a service of process assignment on a defendant:

 

1.       Personal service:   In most states that means handing the documents to a defendant, whether they accept the papers, or not.  There is ample case law that allows for the documents to be dropped at the feet of the defendant who refuses to accept service.[1]  It is still personal service since the act of leaving the documents within reasonable proximity to the person being served is the key element of service[2].

2.       Substituted service:  This simply means handing the documents to a person of suitable age and discretion (in the absence of the defendant) at an address, in California for example, where the defendant either resides, works, receives mail, or where a security guard denies access to the premises.[3]  Service can also be made by serving the agent of a celebrity if the defendant (celebrity) or agent agrees. Most attorneys are not aware of a provision that allows for substituted service at an address on file with the DMV, even if the defendant no longer live there![4]

3.       Service by Publication.  After a diligent attempt at other methods of service and not knowing of the existence of a valid address for service, a court order can be obtained allowing for service by publishing proper notice in a local newspaper for 4 consecutive weeks.

 If a defendant is made aware of the alternatives to personal service, they are more likely to agree to voluntarily accept service.  That can be accomplished by leaving a “notice” at their known address which explains the various options available to the process server.  It is utilized only if the process server has clear evidence that the defendant is intentionally avoiding service of process.

 

Here is an excerpt of a notice we use in California:

                ”Should it become necessary, due to your documented failure to respond, the Court may award costs against you for any or all of the following:

·         Stake-out of your home or business by a licensed private investigator or registered process server;

·         Service at your place of employment by leaving the documents with the person in charge of the business;

·         Service at your residence by leaving the documents with any member of the household who is at least 18 years of age;

·         Investigative costs to determine another place for service;

·         Service by publication in a local newspaper;

·         Service by means of break-in by a Sheriff, upon Court Order;[1]

·         Or, any other alternative legal means of service.”

 

Upon reading the full “Notice to Defendant” it becomes clear that is it in the best interest of the defendant to contact the process server to arrange for service at a convenient time and location.

 

There is an old adage in process serving circles, “You can run but you cannot hide.”  Avoiding service will only delay the inevitable and will surely result in additional costs to be payable by the defendant.

 

Nelson Tucker is CEO of Process Service Network located in the Los Angeles area.  He has been a process server and owner of a legal services firm for the past 35 years.  His firm specializes in international and hard-to-serve cases, including celebrities and heads-of-state.  He may be contacted at nelson@processnet1.com  .

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[1] In re Ball (1934) 2 Cal App 2d 578,579, 38 P 2d 411

[2] Crescendo Corp. v. Shelted (1968) 267 Cal App 2d 209,212, 72 Cal Rptr 776

[3] California Code of Civil Procedure, §415.20, §415.21

[4] California Vehicle Code §1808.21(c)

[1]Los Angeles County Sheriff Handbook

Top 10 Things You Should Know About International Service of Process

By Nelson Tucker, CEO, Process Service Network, Associate Member of the American Bar Association

International service of process is challenging and difficult to understand if you are attempting to do it on your own.  The hours of research can drain your budget and may not provide accurate information to complete the service properly.  That is why you need a company that is experienced and qualified in international process service. 

Here are 10 things you should MUST know about serving legal documents in a foreign country:  

1.      Do NOT mail documents to foreign defendants.  It is a violation of federal laws in most countries and is punishable by civil and criminal penalties in countries such as China, Germany, Italy, Japan, Korea, Norway, Switzerland and Venezuela.  The parties that are liable are the plaintiff, their attorney, and anyone else associated with the mailing.

2.      Choose the correct method of service.  There are two basic methods for serving legal documents in foreign jurisdictions:

a.      Formal service – by utilizing either the provisions of the Hague Service Convention, the Inter-American Convention on Letters Rogatory, or Letters Rogatory.  The choice depends on the country and type of document being served.  The advantage is a more enforceable judgment; the disadvantage is the time delay and cost.  If you intend to enforce the judgment in the foreign country, this is the recommended method.

b.      Informal service – by private process server.  This method is similar to how process serving is done in the United States and Canada.  The advantage is faster completion of the service; the disadvantage is the cost and possibility that the enforcement of judgment may be challenged.  If you are seeking to merely satisfy the court of jurisdiction that service has been accomplished, this is the recommended method.

3.      Service in other countries is different than it is here!  It is not a matter of telling a process server in Colombia, for example, to go serve a defendant tomorrow.  The work habits, traditions, communications, and laws of the foreign nation determine how and when a service will take place.  It is not uncommon for payment of “fees” to be made to local law enforcement officials in order to obtain permission to serve documents.  It is also an obstacle to have instant communication (email, phone, etc.) with process servers in parts of Latin America, Africa, Asia and the Middle East due to slow or downed Internet connections and telephone outages.

4.      Beware of problem countries.  Some countries are currently attempting to delay service of process requests in order to protect against the assets of their entities from leaving the country.  The recent downturn in the global economy has encouraged this type of behavior by governments and foreign courts.  Among the worst culprits are Mexico, India, China, Venezuela, Argentina, Italy, and Russia.  Russia handles the obstacle by simply ignoring formal requests made pursuant to the Hague Service Convention.  The others either stall in the execution of the request or reject the documents on baseless grounds in hopes that the requesting party will give up.

5.      Your local Court must be educated.  Because of the delays in international service of process, it may be necessary to request an extension of time for completion of service.  Hague service can take one to seven months, depending upon the country (worst are Italy and India currently).  While service by private process server may take as little as 24 hours (Singapore, Hong Kong, Australia, Philippines, Brazil), it may also take over a month due to local situations there and the availability of the person being served.  My firm is always pleased to provide an affidavit explaining the reasons for delay, if any, to be used in seeking an extension of time for service.

6.      Translation is required in most countries.  If serving by a formal method, translation is always required.  Remember that all documents must be translated, including exhibits. Translation is optional if utilizing service by private process server.  However, there can be problems if the documents are not translated and the defendant does not file a response, resulting in a default judgment.  Their defense will be that they simply did not understand the nature of the documents and the necessity of filing a written response. Think about this: If your client received a summons from a court in China, written in Chinese, would they be able to recognize the requirements for responding and protections afforded under Chinese laws?

7.      Cost of service seems unreasonably high. Process serving is more expensive in most countries than locally because of 1) security issues, 2) cost of living in the foreign nation, 3) scarcity of qualified process servers in some areas, 4) currency exchange, 5) fuel costs, 6) travel time, 7) number of attempts required to complete service, 8) belief by foreign process servers that U.S. attorneys can afford to pay more, 9) bank transfer costs to pay foreign process servers, and 10) “fees” that are often required in order to obtain permission to perform the service.  For example, most process servers in Latin America, Middle East, Africa and parts of Asia take 2-4 bodyguards with them while serving. Also, fuel costs approach US$9.00 per gallon in some areas and $6.00+ per gallon is the norm in most nations.

8.      Understand the promise.  Don’t take for granted how the service will be completed. Ask for specifics as to how the process works, time frame, possible obstacles. Determine, up front, if there are hidden costs and who is responsible for errors made in the process. Always get everything in writing (email).

9.      Trust, but verify.  There are many companies that claim to provide assistance with international service of process.  There is also a plethora of information on the Internet regarding process service across international borders.  For example, if you compare any three sources against each other you will likely find varying advice and “facts” about service in a specific country.  Even the U.S. Department of State’s website sometimes has erroneous information (we always share the suggested corrections with them as we discover the errors). How do you know what is correct?  Click on www.processnet1.com for information provided free of charge by a firm that has provided accurate international service of process since 1978 (35 years). Always ask the process service firm two questions: 1) “How long have you been in business?” and 2) “How long have you specialized in international service of process?” Ask for proof of both in order to insure that you are dealing with a reputable and qualified firm.

10.   Relax! If you assign the service to a reliable process service firm you should expect that they will handle your assignment correctly and timely. Keep in mind that service of process in another country will not be as efficient or as speedy as it is here in the U.S. and Canada due to customs, conflicting laws, and local restrictions on process servers. Your process service firm should be sensitive to court deadlines and provide an affidavit regarding the status of the service, at no charge, upon your request.  If they seek to charge extra, beware!

Nelson Tucker is CEO of Process Service Network, LLC that specializes in international service of process for the past 35 years. He can be contacted at nelson@processnet1.com  or through the firm’s website at www.processnet1.com

Why International Process Service Is So Expensive

( Re-Print of blog from December 2011 with updates)

People ask me all of the time, “Why is international service of process so expensive?”  My answer is simple although it does not resonate well with some attorneys and paralegals. 

Process serving is more expensive in most countries than locally because of 1) security issues, 2) cost of living in the foreign nation, 3)  scarcity of qualified process servers in some areas, 4) currency exchange, 5) fuel costs, 6) travel time, 7) number of attempts required to complete service, 8) expertise of the U.S. firm which is handling the service, 9) belief by foreign process servers that U.S. attorneys can afford to pay more, 10) bank transfer costs to pay foreign process servers, and 11) bribes that are often required in order to obtain permission to perform the service.  Please allow me to explain each reason:

1.       Although the bribery issue may be the most shocking, the primary cause of high costs is security issues associated with serving legal documents in many nations.  For example, it is customary for a process server in other countries to have 2-4 bodyguards with him while making the service. That extra security is not related to actually serving the documents, but rather, to issues such as kidnapping, mugging, and attack by street people.  If you calculate the costs of two to four additional people involved in the service, you quickly see that the costs can be staggering.  Process servers are subjected to threats that are unheard of in most areas of North America and they must take additional precautions to insure their safety.

2.       The cost of living and prevailing rates charged by process servers in many areas of the world explain high costs.  Hong Kong, Singapore and Paris are good examples of cities having an extreme cost of living and process service fees are proportionally higher than in such places as Dublin, Vancouver or Cancun.

3.       Because process serving is not a common task in many countries due to their legal system, there are often no qualified process servers to perform the assignment.  When Process Service Network began serving in foreign countries, we developed a team of private process servers, private investigators, and off-duty law enforcement officers to handle the tasks.  Often, we had to train the person in order to have a qualified agent to handle services. Now, we offer the #1 training program in the world through our own Process Service University. Costs are affected by currency exchange rates in such areas as Europe, especially the UK where the Sterling Pound is strong against the Dollar.  A service that would normally cost $100 in the U.S. would be $200 in the UK, assuming all other factors were equal.

4.       Fuel costs are seriously higher in almost every area of the world compared to the states. In most of Europe gas is over $6.00 per gallon while in Taiwan is often reaches $8.00 per gallon.

5.       Travel time is a major factor in international service of process as it is common for drive time to be several hours to get from one side of a major city to the other.  If you have ever visited Manila, Mexico City, Tokyo, Taipei, Beijing, Paris or Rome you understand.  Service in outlying areas where there are no process servers often require overnight stays and multiple attempts, thus increasing the cost.

6.       Process servers are contracted for completing a service rather than simply making attempts.  Therefore, they set their fees to accommodate having to make numerous attempts at service.  For example, it is common for 10 or more attempts at service be made prior to completing the service.  Since the foreign process server must pay his/her own expenses, their quoted rates are high due to anticipated trips. I recently visited Kauai, Hawaii which is a relatively small island.  It took 1 hour and 50 minutes to travel from one area to another (one way!).  Imagine if it required numerous attempts to complete the service.

7.       Just as an attorney is entitled to significant hourly rates based on their expertise, companies which specialize in international service of process have specific expertise that command a fair market rate.  Fortunately, most reputable process service firms charge a flat rate for the case, not by the hour, or by the number of attempts.

8.       There is a perception among foreign process servers that all U.S. attorneys are rich….too much television.  That opinion leads them to believe that they can gouge American law firms.  In reality, U.S. attorneys face the same fiscal constraints as those in any other country.  Educating the overseas process server is the job of a reputable company that facilitates international service of process on behalf of their clients.

9.       Bank wire fees, and sometimes, Western Union fees lead to increased costs.  Since many foreign process servers require payment, in advance, it is usually necessary to make payment by bank transfer or other methods prior to making the assignment.

10.   The final cost that creates higher rates is the money that must be paid for bribes to get permission from local officials to serve legal documents.  Bribes are a reality and are quite common in most regions of the world – it’s the way things get done.  Process servers are forced to pay “fees” to government officials in order to get law enforcement cooperation and even, in some cases, to avoid prosecution for not paying the bribe.

In summary, things work differently in most parts of the world than in North America.  You may not fully understand that until you visit certain regions and experience the hidden costs that are often associated with conducting business.

The solution to avoiding unknown hidden costs is to employ the services of a reputable process service firm that specializes in international service.  They understand the ins-and-outs of the business and know how to circumvent many of the concealed costs.

For answers to questions you may have about this article, please contact Nelson Tucker, CEO of Process Service Network, LLC, by email at processnet@sbcglobal.net, phone at 1-800-417-7623, or visit the website at www.processnet1.com.

Security Issues for International Process Servers

Provided by Process Service Network, LLC
www.processnet1.com

Process serving in the United States is typically routine and without danger.  However, in most parts of the world it can be quite dangerous – not as a result of the direct encounter with the person you are serving but with persons or groups who have a political or financial motive in harming you.

That is one of the reasons that international service of process is so expensive; the need for bodyguards to accompany the process server.

Here are some tips to keep the possibility of kidnapping or harm at a minimum:

Passive Kidnap Avoidance

1)    Avoid advertising your American ties

a)    If you have dual citizenship, use your non-U.S. passport in lieu of your U.S. passport whenever possible.

i)     Checking into hotels

ii)    Registering for events

b)    In conversation with unfamiliar persons, it is better to refer to yourself as a citizen of another country (except Israel) than of the U.S.

2)    Try to blend in

a)    Observe how the locals dress

i)     To the extent feasible, mimic

3)    Avoid sharing information

a)    Do not share information regarding your upcoming activities, times or places

i)     Out load among members of you group

ii)    In idle conversation with taxi drivers and hotel staff

iii)   Documents left in hotel

iv)   Assume your hotel room and phone are bugged

v)    Keep laptops and IPads with Bios-level password and Windows-level password

(1)  Consider using  Windows 7 Bitlocker

(a)  Can be configured to encrypt your entire hard drive without an on-board encryption chip

(b)  http://www.howtogeek.com/howto/6229/how-to-use-bitlocker-on-drives-without-tpm

vi)   Keep information on your itinerary and schedule under your control

(1)  Consider using disinformation

(a)  If asked, share the wrong information

(i)   (You can always later say that you made a mistake)

(b)  Leak the wrong information

(c)  Avoid predictability

(i)   Vary routines, routes, times, modes of transportation

(ii)  Exit and enter hotel via different entrances

(iii) Change up meal times

(iv) Use different taxi drivers

1.    Ask hotel which cab companies are reliable

(d)  When ordering a cab, you do not have to give the exact location of your destination to the hotel staff

(i)   You can always "change your  mind" when you get into the cab

(e)  When being dropped off by a cab, consider getting out before or after your true destination and walking a block

(i)   Deny potential kidnappers information regarding your whereabouts

4)    Avoid American or expat hang-outs

a)    McDonald's Hooters, Irish pubs, locations frequented by foreigners in that country

Active Kidnap Prevention & Detection

1)    Best time to escape is at the moment of the kidnapping, when kidnappers are off balance

2)    The longer you are under the kidnappers control, the lower your chances of escape

3)    Best methods to handle a kidnapper's roadblock

a)    Spot it early and turn around

b)    If caught by surprise, drive up to the roadblock, act as if cooperating, and accelerate through the roadblock when your car is approached

i)     Key to successfully running a roadblock is to strike the blocking vehicle at the end that does NOT have the engine

(1)  Vehicles with engines in front, strike at the extreme rear end so that the car pivots on front tires

(2)  Vehicles with engines in back(such as a VW bug), strike at the extreme front end to that car pivots on rear tires.

4)    Do not allow your vehicle to be boxed in

a)    Leave maneuvering room with car in front of you at stop lights

b)    Middle of three lanes is worst location

c)    At each stop, always think where your escape route would be if you felt you were about to b hijacked

5)    Surveillance detection

a)    On foot, surveillants usually work in teams and rotate positions

i)     Person directly behind you at a distance; on opposite side of street diagonally back from you; paralleling you; out in front of you

b)    Surveillants change articles of clothing (hats, coats, etc.)

i)     Focus on something difficult to change quickly (face, shoes, and pants)

ii)    Employ channeling and reverses, illogical flows, both on foot and in vehicles

(1)  It's OK to use such aggressive techniques that let surveillants know you are on to them

(2)  The harder the target you are, the more likely they will select a softer, less savvy target

Street Crime

1)    Photocopy all your ID's and credit cards, front and back, before traveling

a)    Leave copies with a trusted person in the U.S.

i)     This helps facilitate the rapid reporting of theft

b)    Carry a copy of your passport (not the original) on your person

c)    Keep your passport in the hotel safe

d)    Be aware that when you pull out money, someone may be watching you

i)     Use two hands in different pockets

ii)    Shield from view when withdrawing money from pockets

iii)   Be discreet

iv)   Change where you keep your funds

2)    Only carry on your person what you need and are willing to lose to pick-pockets or muggers

a)    If you have three credit cards, take just one with you on the streets

b)    Always have some "throw away" money to give up if assaulted

i)     Disperse your money in different places on your person

(1)  Shoes, money belt, shirt and pants pocket

(2)  Visa cards are widely accepted, followed by Master Card; Discover card and American Express are not widely accepted

ii)    In a mugging/hold-up, do not fight back

(1)  Stay calm

(2)  Give up your "throw away" money

(a)  thieves, pick=pockets and muggers often work in teams, with some members some members ready to be called into action if things go wrong

Hotel, Restaurant & Event Location Selection

1)    The best locations have multiple entrances and exits

a)    Makes surveillance more complicated

b)    Safer to have your team grouped on same floor in contiguous rooms to monitor each other's security status

2)    When dining in restaurants, identify the exits

a)    Position yourself so that you can monitor the front door and see trouble coming

b)    If trouble comes in one door, leave immediately by another door

Securing Personal Property

1)    When traveling, zip ties and Jocks are handy, but not a guarantee of security

a)    If locks cannot be used on suitcases, using Saran wrap and/or zip ties adds another level of security

2)    When checked into your hotel, zip ties can be used to add level of security and provide visual clue of tampering

a)    Do not trust hotel staff

b)    Use in-room safe for laptops and IPads you do not carry with you and for any valuables left behind

3)    When on the street, if carrying laptop, better to use bag that does not telegraph th contents

a)    Briefcase better than laptop carrying case for example

4)    Credit card cloning

a)    Report to credit card company your itinerary before you leave the U.S.

b)    Credit cards are often cloned at restaurants when the card is removed from your sight

i)     Keep your eye on your credit card at all times

(1)  Watch the waiter if your card is processed away from your table

Copyright 2011 – Process Service Network, LLC

All rights reserved 

www.processnet1.com