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By Bill Altreuter

Here's an amusing Court of Appeals decision that says that service in a foreign country need only comply with CPLR 313 and not that country?s requirements-- unless a treaty is implicated. Why wasn't the Hague Convention implicated here? Because Brazil is not a signatory to the Hague Convention. Who knew? The case arises out of a civil forfeiture action brought by the Manhattan District Attorney's Office, and it is interesting to think about the lawyering that would have been involved. Some ADA was told to serve the Brazilian defendants. Presumably that person looked up international service and then had the wit to check to see if Brazil was a signatory. Finding that it wasn't, I suppose the next step would have been to return to the plain language of the statute. CPLR 313 says:

"A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction".

Seems pretty clear, right? Although both the United States and Brazil are signatories to the Inter-AmericanConvention on Letters Rogatory (28 USCA § 1781) that treaty does not mandate that letters rogatory be the exclusive means of service on a party in Brazil. The Court of Appeals says the Inter-AmericanConvention on Letters Rogatory doesn't say "positively", so we're going to call this a question of New York law. When it comes to New York law the Court of Appeals is pretty literal, so too bad for you, Brazilian bad guys. You are totally served.

Full post as published by Outside Counsel on November 26, 2008 (boomark / email).