Service of Process Under the Hague Convention... To Mail or not to Mail?

Courts around the country are split as to whether Article 10(a) permits Service of Process by mail in international civil actions, the New York courts are no exception.

Recently the New York Law Journal produced a white paper that provided expert analysis of the issues surrounding the differing points of view of various courts in New York.  

I am probably over simplifying the issue but it appears to me that part of the conflict  has to do with what is the definition of  "Service of Process" on the Hague Convention.  Is it correspondence and other informational material or is it more formal documents like a summons and complaint?  Some courts have held that it is both while others have not. 

It seems to me that if the initiator of the Service of Process and the recipient of the Service of Process are consenting to service via postal, electronic or other more convenient and cost effective channels then who cares. 

I encourage you to learn more by visiting the article at the link provided above.   

Jeff Karotkin

Electronic Service of Process via RPOST

Three months ago I posted an article on this Blog titled "Can you Serve Summons & Complaint by Email? " in that article I cited another instance where RPOST was ordered by a federal court as alternative means of Service of Process on a foreign defendant.  So this is hardly the first time RPost has been on the Service of Process Looking Forward radar. 

I have been watching RPost for some time for this very reason.  Does their technology pose a threat to traditional  manner of service of process?  I contend that as long as it is being used as method of service of process when all other reasonable methods have been exhausted, then my short answer is no.  It is arguable more reliable than service by publication in a newspaper.  

But RPost is worth watching.  In my prior article I wrote the following:

It is also be worth noting that RPost recently participated in a roundtable discussion hosted by the Federal Trade Commission.  The roundtable explored how changing technologies affects the ways debt collectors communicate with consumers and how emails are being used by collection agencies in the collection process.  

Now imagine if the debt collector is allowed under the FDCPA regulations to communicate with the debtors using regular email or RPost's product.  If that happens why couldn't a debt collector send a Summons to the debtor using a reliable and secure electronic channel?  The collector might say in the email I can send the summons to you by email or I can send a process server or Sheriff to serve you... You pick, but keep in mind if I send a process server I might include the cost of service in the judgment or settlement amount.  Now that might put a dent in the process serving industries pocket.

When is the process serving industry going to acknowledge that service by electronic means is not much ado about nothing?   If you listen to some in the process serving industries leadership it is clear they are either out of touch or naive.  Either way, how you as a process server remain relevant is your responsibility.  If you are waiting for your national association to step up and save the day, I submit it will be too late.

by Jeff H. Karotkin

Technology is Modernizing Process Serving

This from InsideArm, an accounts recieveable managment association that caters to the consumer debt collection indsutry...

The industry’s leading process service companies are now deploying sophisticated technology and mobile devices to add substantive evidence that legal documents are properly served and that collections agencies and attorneys are providing defendants proper notice of legal proceedings. says Steve Carrigan of ABC Legal

http://www.insidearm.com/opinion/technology-is-modernizing-debt-collection-process-serving/ 

What do you think?  Is all this monitoring of process servers a good thing?   Later this month a process serving standards summit will be held in Denver to discuss the possible adoption of minimum industry standards for process servers serving consumer debt collection matters.   View the proposed standards here. http://www.processservingstandards.com/ 

by Jeff Karotkin

Quebec Bailiffs are Becoming Digital Process Servers

I had the pleasure of being a guest of the Chambres de Huissiers du Justice (Quebec Bailiffs Association) in Montreal a few weeks ago.  The annual "congress" was focused on technology and how the Quebec Association of Bailiffs have developed a product called "Notabene".  Notabene is a platform that acts as a disinterested third party that performs many of the same functions as a physical process server only electronically.  Clearly the Bailiffs in Quebec recognized that fax and email was eroding their business so they sought to create a platform that enabled them to become the equivalent of an electronic process server.  

“There has been a lot of talk in the legal community about electronic notice and, to help make that happen, we are offering a vehicle that is secure and operated by a trusted third party,” says Louis-Raymond Maranda, president of the Chambre des huissiers de justice du Québec. 

Read more: http://www.montrealgazette.com/Strictly+Legal+Quebec+bailiffs+become+digital+process+servers/6821874/story.html#ixzz1yZjLBDmn

As the article indicates the product is owned by the association and the actual members of the association.  It is a very interesting product that currently allows lawyers to serve each other (notice to opposing counsel) in an inexpressive, secure and trusted manner.  

The important point (at least to me) is that this effort in Quebec is a great example of folks with a common interest (survival and prosperity) coming together to create something that allows them to remain relevant in an increasingly digital world that threatens their very existence. 

Thank you to Chambre des huissiers de justice du Québec allowing me to address their members as a guest speaker at their conference.  I spoke to them about eFiling, eService, change management.  

Jeff H. Karotkin  

Alernative Service of Process - Service Via Website Posting

Last week a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Judge Ordered Service by alternative means pursuant to the Federal Rules of Civil Procedure 4(f)(3).  This manner of service is somewhat unique and as far as I know has only been ordered exactly this way in one other case.

The Order reads in part as follows:

1. Plaintiff shall serve each Defendant's Summons, Complaint, and all other current
 and future filings in this matter, upon Defendant 8 - chanelbags-2010.com via desianerbags@live.com; upon Defendant 10 - chanelpricelist.com via TopGiftzolzt@gmail.com; upon Defendant l 5 - designerbagsoutlets.com via designerbagsoutlets@hotmail.com; upon Defendant 28 madeinputian.com via madeinputian@hotmail.com; upon Defendant 39
sobestreplicahandbags.com via goodhandbagsonsaleçzgmail.com; upon Defendant 42
swissetawatches.com via saleslwatchzbuy.com; and upon Defendant 46 - topshoesshop.net via
topshoesshopro@hotmail.com ;

2. Plaintiff shall also serve each Defendant's Summons, a copy of the Complaint,
and all other current and future filings in this matter, upon each Defendant in this action via (A)
the e-mail addresses provided by Defendants (i) as part of the domain registration data for each
of their respective domain names, including service via registrar, or (ii) on their websites,
including by onsite submission form s, and/or

3. Plaintiff may effectuate service of process on Defendants via publication by
posting a copy of the Complaint, and Summonses on the Internet website appearing at the URL www.servingnotice.com/sdm/index.html

If you visit the website provided in the Order ( link above) you will find that it is the equivalent of an electronic publication of all the relevant documents in the case that would provide the defendants with actual notice of the lawsuit.  That is assuming they actually visited the site.  The complete Order in this case case her found here.

The other instance of service via a website that is very similar to this example can be found be visiting: www.serviceofpleadings.com  In this case the judge ordered the copies of the pleading to be posting in both English and Chinese as it was believed that the defendant might be of Chinese decent. 

By Jeff Karotkin

Federal Judge Rejects 'Unorthodox' Plea to Permit Service by Facebook

Judge John Keenan of the U.S. District Court for the Southern District of New York decided that Service of Process by Publication was more effective manner of alternative service than posting an update to the Facebook page of the defendant.    

The Plaintiff after being unable to locate and serve the defendant petitioned the court to allow service by electronic mail, publication, Facebook and mail.  The judge determined that service by publication in 5 newspapers was the most likely to provide actual notice.  

The Judge said "Service by Facebook is unorthodox to say the least, and this court is unaware of any other court that has authorized such service," Keenan said. "Furthermore, in those cases where service by email has been judicially approved, the movant supplied the Court with facts indicating that the person to be served would be likely to receive the summons and complaint at the given email address."

The judge went on to say "give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole."  "Indeed, the Court's understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato the investigator found is in fact the third-party Defendant to be served."

I for one happen to agree at least in part with the judge in this instance.  Unless the moving parties can establish that the profile did in fact belong to the defendant, that manner of service is not reasonably calculated to provide actual notice.   That said, service by publication is not much better, but it has a long history of being a means of last resort where service by social media does not.  

Service via social media platforms has been picking up momentum in recent years and I believe it would be threat to due process rights of the parties to accept it as a reliable manner of service just because Facebook has established a platform and brand that is used the world over. 

The courts should be looking to craft and adopt Best Practices for Electronic Service of Process for parties that opt-in or for instances where all of manner of service have been exhausted.  Perhaps judge should be more aware of the the American Bar Association adopted a set of best practices way back in 2006.    I would argue that is it time to dust them off and make sure that they are as relevant today as they were meant to be back then.  The bench and bar should be socializing them across the country so that judges have as much information as possible before they rule on motion to allow alternative forms of service of process.  

HAS NAPPS LOST ITS WHY?

This post is my perceptive and opinion based on years of first hand experience "inside baseball" analysis.


A few newsletters ago the Administrator Gary Crowe wrote about what he believes NAPPS is and what it does and how it does it.  From my perspective he was telling the members what was important and how things are supposed to work with the association as it relates to the members rights and responsibilities.

Whether you are or disagree with his assessment is not really important, what his message told me is that he and several others of the inner circle of NAPPS leadership over the years have lost sight of “why” NAPPS is important and was founded in the first place.  Notice I did not say they lost their way.  You would have to have a clearly articulated plan and an idea of how you intend to execute on that plan in order to have lost your way.  Without an idea of where you are going and how you hope to achieve your goals and objectives you can’t lose your WAY.

I contend that everything that NAPPS does and doesn’t do should flow from or be the result of its WHY.  Why does NAPPS exist?  Why is NAPPS important? Instead it appears to me as evidenced by the Administrators message and the messages of the leadership everything has become about WHAT and HOW.

In the early years of NAPPS it did have a very clear sense of WHY; not anymore.  NAPPS the brand, NAPPS the organization has lost some of its appeal, it is no longer as special as it once was, it no longer commands the respect and stature it did years ago.   It has lost its WHY.
Let’s face it, there are many process server directories in print and online, some arguably do a much better job providing their members and subscribers with real and meaningful value.  Members and non-members alike have gravitated toward other directories and forums to educate themselves, share ideas and network with their peers.

NAPPS can no longer differentiate itself and its brand from the others as the leader in the industry.  This was not always the case.  It was once like APPLE (the company) everyone wanted to be a part of it, everyone wanted to be associated with its brand.  Being a member of NAPPS differentiated you as a professional.   Unfortunately that is not as true as it once was.
If you were to ask an avid skier, cyclist or fly fisherman and someone asked you why you participate in those activities, you will likely answer that question be demonstrating your passion for that activity.   If you ask a NAPPS member why they are a member or a board member why they want to serve I contend that they will not be able to answer you with the same passion and enthusiasm as the fisherman, cyclist or skier.

I contend that the reason is because in part NAPPS has lost its WHY, its reason for existing, its focus on what is truly important, the reason the organization was started in the first place.  NAPPS was about preserving and protecting the private process serving industry.  That was its mission, its core reason for existence, its purpose.

Today, NAPPS has become about differing segments of members fighting over the pie.  Fighting over money, board seats, it has become about the personalities that are unwilling to set aside their egos for the good of the organization because they fear they are losing control.  If NAPPS is good at anything lately it is good at reacting to threats and even that is debatable.  It certainly is not looking for opportunities to ensure we as an industry remain relevant.

NAPPS was created with a clear set of objectives, its purpose or why was to ensure that private process and their role in ensuring the due process right of litigant was protected.  Simply put the WHY was always about making sure that private process servers remained relevant.

If you accept my premise and if any of it resonated with you, I content it is time that NAPPS found its WHY.   Once found, NAPPS should hold a strategic summit with leaders from all the state chartered associations to discuss and adopt a new or refreshed purpose or WHY.   With the WHY formally agreed upon our leaders should then go about defining a clear set of short and long term objectives that flow from that WHY.  Then and only then will NAPPS be able to measure it success against something meaningful.  In order to effectively execute on the goals and objectives NAPPS needs to make sure that someone  is ultimately responsible and accountable for producing results that get us from where we are today to where we want and deserve to be tomorrow.

Unfortunately in the last few years the leadership and management structure not only doesn’t support or embrace that kind of accountability and transparency, it resists it.  The time has come for NAPPS to reexamine its WHY and get back to what is important and why it was created in the first place.   This kind of commitment requires courage and leadership.  It requires willing and able participants who are truly invested in bringing NAPPS from the cusp of falling from greatness.

Let’s hope that this coming year doesn’t become a repeat of the last few where the agenda included constant fights over minutes for no good reason, kicking out a duly elected board member, issuing sanctions against those that dare to ask difficult questions and demand more accountability and the constant disregard for our established published policies.

Based on what I saw this last weekend there were a few glimmers of hope but overall it appears that this year will be about hunting down and lynching those that have been critical of NAPPS and some of its leaders.  One of the attendees this weekend actually called for hangings.  If the goal was to create an angry irrational mob then the leaders succeeded.  If that is what we can expect NAPPS it is truly doomed to fall from greatness.   It is time to heal and rise of above the BS and put this ugly chapter behind the organization.   It can’t afford to waste another year; the status-quo will not carry the day.

By Jeff H. Karotkin

Process Servers - From Here to There

Process Servers and Our Association; How Do we Get from Here to There

Private Process Servers - - - Do you and does your industry or association have a road map?  What I mean is do we have a clearly articulated set of goals and objectives from which we can plot a course that ensures we remain as important and as relevant to the legal system as we have been for many decades?   Depending upon who you ask the answer to these questions will vary.   Another way of putting it is… are we renewing our greatness or are we dangerously on the cusp of falling from greatness and ceasing to remain relevant?  

To be sure there are several forces that are having an impact on our industry in a negative way.  The ever increasing pace at which technology is causing the legal profession to evolve is a challenge that many in our industry have failed to recognize.   Case and point, is the number of process servers that no longer have a role in fulfilling their clients’ needs at the courts.   If your court is has not already implemented electronic access to case files and electronic filing it will over the next few years.  This evolution alone threatens to diminish our role and relevancy in the eyes of the legal profession.  With electronic filing comes electronic service between parties.   I attended a demonstration recently given by LexisNexis File & Serve where they demonstrated their product.  They showed that they have filed and served millions of documents with the court and enabled electronic service (party to party) service.  They are serving 5,400 transactions per calendar day electronically.     All that business is gone or otherwise out of reach to the typical process server/legal support agency.   Why is Lexis so successful?  They are successful because they figured out how to remain relevant and bring value to what had been a very labor intensive paper based fulfillment process.  They embraced change and made it work for them and their customers.

Private Process Servers need to take a page from their playbook and start evolving.  I am not talking about creating a website or online order placement or stat using systems.  That is easy and though important in today’s marketplace it will not win the day.

Process Servers in my opinion should be looking outside the box and should be trying to figure out how they can enable electronic service between parties (law firms) and even enable electronic service to defendants directly.  I know that makes process servers uncomfortable.  Well guess what if you don’t figure it out someone else will.

This brings me to your association and its role if any in leading the industry forward so as to ensure all of us are informed and in position to bring value to the legal industry.  From where I sit I think that for the most part your associations have failed this test and as stated earlier in this piece; they too are on the cusp of falling from greatness and are dangerously close to ceasing to remain relevant.

I would submit that NAPPS and the state chartered associations have a responsibility to address the fundamental problems and challenges facing the industry.  Whether they are technological challenges, Sewer Service or the likelihood of increased government regulations, an effective accountable and transparent association will be crucial to getting the industry From Here to There.

In order for that goal to be realized the associations must reexamine their structure, their purpose and their goals and objectives.  I believe that these thing must be refreshed if the associations are going to be effective in the years to come.

It is clear to me that it is not good enough to be reactive to the challenges I have noted in the piece, rather recognize that the legal eco-system that we exist and live in has been evolving for some time and we have not.  We are at a crossroads that will determine whether or not each of businesses will evolve or die a slow death.

I don't proclaim to have a crystal ball but I do know that we (the associations and our industry) are on the cusp of falling from greatness.    Some of us will not only survive but will thrive, while others will not.  That is just the way things work.  Call it natural selection or evolution, whatever you chose to call it you need to decide which side of the fence you plan or being on.  

I have watched and participated in a few associations and I have learned few lessons along the way.  One of the most important among them is those that we consider the forefathers or founders did an amazing thing by leading earlier on, but now is the time for the next generation of leaders to step up, they need to refresh, reorganize and reenergize the association and the industry.  It is time to acknowledge where we are as an industry and that the status-quo thinking and decisions are outdated, they lack vision and purpose.   We need and should demand leaders that will roll up their sleeves, embrace change and ensure we do not fall from greatness but remain relevant and prosper for years and decades to come.
 

Jeff H. Karotkin

Can you Serve Summons & Complaint by Email?

The answer to that question depends upon who you ask.  Those that have been following this blog for the last few years know I have explored this and other challenging questions and concerns that are impacting the private process serving industry. 

Service of legal documents by electronic means has been evolving for more than a decade.  So it is no surprise to me that hardly a month goes by when there is another example of how technology is changing the way law is practiced and how the Service of Process is performed.  

Recently, I was made aware of another example of how things are changing that affect the process serving industry.  The example was a blog post by a company I have been following for some time.  I have considered them worthy of watching because I thought it was likely that their registered email product could be used to displace or disrupt traditional manners of service of process in use today.  That company is RPost.  

Before I forget, upon passing the baton a few years ago to Bob Musser and Eric Vennes (the last two NAPPS Technology committee chairs) I made sure that they knew that I felt strongly that they should be watching RPost.    Whether or not they took my advice, I do not know.

OK, back to RPost, they published a story on their blog recently that posed the question I asked above.  Can you Serve Court Papers by Email.   The quick answer is it depends upon a number of factors including applicable laws, statutes and individual judge rulings that hear requests for alternative forms of service.  Interestingly story cites a case pending before the United States District Court for the Eastern District of the Texas where RPost was the plaintiff.  The judge in that case Ordered service of process by email and the plaintiff attorneys used RPost's own registered email product to effectuate service on a foreign defendant.  IN my opinion one of the more important aspects of this story is that RPost is now touting its product as a being reliable, secure and court admissible proof of delivery for the Service of court documents.   

It is also be worth noting that RPost recently participated in a roundtable discussion hosted by the Federal Trade Commission.  The roundtable explored how changing technologies affects the ways debt collectors communicate with consumers and how emails are being used by collection agencies in the collection process.  

Now imagine if the debt collector is allowed under the FDCPA regulations to communicate with the debtors using regular email or RPost's product.  If that happens why couldn't a debt collector send a Summons to the debtor using a reliable and secure electronic channel?  The collector might say in the email I can send the summons to you by email or i can send a process server or Sheriff to serve you... You pick, but keep in mind if I send a process server I might include the cost of service in the judgment or settlement amount.  Now that might put a dent in the process serving industries pocket.

 

Of course I am speculating as to what could happen, but I submit my speculation is not too far-fetched. My blog cites more than a dozen examples in recent years where service by electronic means is becoming more and more common. 

If you are a process server that plans on remaining relevant over the next few years you should be asking yourself what are you doing and/or what is your association doing to address these challenges?  If you opt to not take these and the other examples of how the industry is changing seriously you have no one to blame but yourself.      

ADAPT OR DIE

Adapt or Die

Whether you are running a process serving agency or you are a process server on the street, the changes that have occurred in recent years are very evident. The new tools and advances in technology that have benefited the industry are numerous, here are just a few; Smart Phones, Scanners, Email, GPS, the Internet, WiFi hot spots, Process Serving Management software applications, modern Skip Tracing tools, etc…

If you are running a process serving agency, the use of printed CrissCross directories is no longer necessary. Typing a proof or affidavit of service is very rare occurrence. The use of hanging file folder system to monitor pending assignments is almost unheard of in a modern office.

If you are a process server on the street, the use of map books is almost entirely a thing of the past. Having to drive to the client’s office to pick up documents in many instances is no longer a requirement but rather an obstacle. Responding to a pager and having to find a pay phone to call the office is unheard of these days.

These are only a few examples of how things have changed, yet at its core the task we perform is largely unchanged. For example, we still have the need to intake, manage, monitor, assign, serve, report, document, and bill for all the things we do while performing our duties as a process server or process serving agency. How we get all those things accomplished is the difference. That is to say the march of technology has allowed us to perform the core task more efficiently than ever before. How we attract new customers and interact with existing customers is changing all the time.

I would argue that the most successful amongst us have adapted their policies, procedures, practices in a way that has enabled us to create efficiencies, remain competitive and bring value to all the aspects necessary to properly execute the act of serving process.

Many in the process serving industry are reporting that they are serving fewer Summon and Complaints going to corporate entities and Registered Agents. There are also many process serving agencies that are reporting that they are serving fewer Subpoenas’ as well. That business did not just disappear overnight. Over the last ten years the business services have been slowly eroding and going digital.

Those among us who do not embrace change and leverage the opportunities to evolve, risk remaining relevant. Do you want to join the ranks of jobs, professions, products and services that are becoming extinct?

FACT- Almost every segment of the business world today has been significantly impacted by technology that disrupts the manner in which products and services are made, delivered, marketed, and sold. This disruption can and has completely eliminated entire segments of businesses in a relatively short period of time. A great example of that in the legal support profession is what has happened to traditional legal messenger and courier companies. Those that catered to picking up and delivering legal documents to the federal courts and some instances state court (Colorado and very soon Florida) as well as several large county court systems (Philadelphia County PA, Kings County, WA, and Clark County, NV) around the country were forced to evolve or they most assuredly ceased to exist. The advent of electronic filing poses both a threat and an opportunity. Yet very few traditional court filing providers found a way to evolve in a way that allowed them to retain a role in the electronic court filing business.

Take an honest look at what has happened to many professions… Travel Agents, Stock Brokers, Insurance Agents, The Newspaper and Magazine industry, Video stores, Music stores, Toll Booth Operators, the list goes on and on. The point is it would be naïve and perhaps dangerous to think that what has happened to these industries in the last ten years could not happen to us.

In my view one of the most alarming trends by our customers is the practice of bypassing process servers in favor of other means of delivering legal documents. Many corporations large and small have started to implement a practice that is threatening the very existence of process servers. Specifically, I am referring to the practice of allowing parties to a case to use the US Postal Service, FedEx, Facsimile, Email and other electronic means for delivery of legal documents to parties and non-parties. The laws that govern service of process are largely unchanged; some might argue that they have not kept pace the changing business world. Yet the practice exists and goes unchallenged.

I have heard some process servers say we don’t have anything to worry about until the laws change to allow eService. It is true that there not many laws or statutes on the books that explicitly allow electronic service. That said, it is not stopping lawyers and companies from adopting practices that they think are more efficient or effective. Like it or not, the shift away from traditional manner of service of process is well underway. In time, the rules and statutes will be forced to evolve in order to harmonize with the practices that have been and will be adopted.

Sewer Service troubles only contribute to the image of process servers and could contribute to parties seeking other options to give notice – electronic means may seem farfetched for collection papers. But when you consider that the Federal Trade Commission recently held a round table to explore alternative ways that collectors can communicate with debtors. The topic of electronic communication was front and center.

I started this article by asking the question; how has the process serving profession changed. I believe that I have just scratched the surface in this article. Perhaps the better question is – What are you doing to insure that your business and the process serving industry remains relevant?



How do we insure we remain relevant?

None of us can claim to predict the future accurately. But we can make some observations about what we see happening in our industry and in others. These observations can help shed some light on what the future is likely to hold for the process serving industry. Do your state and national associations have a role to play here? Perhaps they do, but the best that I think that you can hope for from your association is to educate you on the impending changes so you can make informed decisions about your individual future. Do not fall into the trap that everything is just fine. I contend it is ultimately up to each process server or process serving agency to be responsible for insuring they remain relevant. Educate yourself pay attention to what matters to your customers, attend legal technology conferences and challenge yourself to re-invent your business. Rest assured that if you don’t someone else will.