Rule 4A: Service Upon Defendant in a Foreign Country.

Service upon (1) an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, (2) a corporation, or (3) a partnership or other unincorporated association (including a limited liability company) may be effected in a place not within any judicial district of the United States:

(1) 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; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(C) unless prohibited by the law of the foreign country, by

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) in the case of a corporation, by service as provided in 4.04(4) upon any corporation that has acted as the corporate defendant's agent in relation to the matter that is the subject of the litigation or the stock of which is wholly owned by the corporate defendant.

(4) by other means not prohibited by international agreement as may be directed by the court. [Effective July 1, 1997.]

Advisory Commission Comments.

Rule 4A, which is captioned “Service Upon Defendant in a Foreign Country,”is an entirely new rule. The Rule is based, with substantial revisions, on the current Federal Rule of Civil Procedure 4(f), but omits the phrase “Unless otherwise provided by federal law”from the first sentence. The bracketed parts have also been added to make clear that this provision is applicable to business associations as well as to individuals.

Litigation in the United States increasingly includes international elements and often foreign defendants, and certain treaties have important implications for civil litigation in American courts. For example, the multilateral international convention, “Service Abroad of Judicial and Extrajudicial Documents,”often referred to as the Hague Service Convention, became effective in the United States on February 10, 1969. Kadota v. Hosogai, 608 P.2d 68, 71 (Ariz. App. 1980). Its importance has increased dramatically in recent years as a consequence of both the increase in international trade and the addition of signatories to the convention.

Litigants are obliged to consider the possible impact of international treaties upon litigation. Reliance solely upon the specific provisions of Tennessee law may result in service of process being invalidated by treaties such as the Hague Service Convention. Wilson v. Honda Motor Co., Ltd., 776 F. Supp. 339, 342 (E.D. Tenn. 1991). Under the Supremacy Clause of the United States Constitution, treaty provisions for service abroad prevail over contrary state law, Kadota v. Hosogai, 608 P.2d 68, 71 (Ariz. App. 1980), and are thus controlling even in the absence of recognition by state rule. Rule 4A, however, reminds the lawyer to consider overriding treaties and also provides for alternative means of service.

Moreover, applicable treaties may actually expand the service options in some cases. See, e.g., Semet, Lickstein, Morgenstern, Berger, Friend, Brooke & Gordon, P.A. v. Sawada, 643 So.2d 1188, 1189 (Fla. App. 1994) (under the Supremacy Clause, service upon defendant in compliance with Hague Service Convention is valid service of process).

Subpart 4A(3) provides specific direction to the courts on a question that has not yet been addressed by Tennessee law. The provision establishes that a subsidiary corporation that is simply the alter ego of a foreign corporation may be the agent for service of process under appropriate circumstances. Given the hostility to litigation in American courts that may be found in some foreign countries, such a provision will allow an attorney in some cases to avoid the expense and inconvenience of having to attempt service in a foreign country.

Compliance with the Hague Service Convention, for example, is required only when service on the defendant is in a signatory country outside of the United States. If the defendant has an agent for service of process in the United States, service upon that corporation may be in accordance with state law. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 (1988). If service of process on a domestic agent, therefore, is proper under both state law and the Due Process Clause of the United States Constitution, the Hague Service Convention does not apply.

 Whether there has been compliance with the Hague Service Convention may in itself present tricky problems of interpretation. For example, a substantial body of authority has developed on both sides of the question of whether Japan permits service of process by mail. See Pennebaker v. Kawasaki Motor Corp., U.S.A., 155 F.R.D. 153, 154 (S.D. Miss. 1994); McClenon v. Nissan Motor Corporation in U.S.A., 726 F. Supp. 822, 825 (N.D. Fla. 1989).

For additional cases illustrating the importance of compliance with international treaties, see Ackermann v. Levine, 788 F.2d 830 (CA2 1986); Bankston v. Toyota Motor Corp., 123 F.R.D. 595 (W.D. Ark. 1989), aff'd and remanded, 889 F.2d 172 (CA8 1989); Harris v. Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775 (M.D. La. 1984); Lyman Steel Corp. v. Ferrostaal Metals Corp., 747 F. Supp. 389 (N.D. Ohio 1990); Raffa v. Nissan Motor Co., Ltd., 141 F.R.D. 45 (E.D. Pa. 1991); Honda Motor Co. Ltd. v. Superior Court of Santa Clara, 10 Cal. App. 4th 1043, 12 Cal. Rptr. 2d 861 (6th Dist. 1992).