The situation involved accusations of U.S. patent violation: complaintant was seeking a declaratory judgment that it hadn't been infringing the defendant's U.S. patent. After filing the Complaint and neglecting to convince defendant's counsel to simply accept service of process on defendant's account, plaintiff's counsel filed a request accept to serve the defendant at his business in Taiwan by FedEx.
Federal Rule of Civil Procedure (FRCP) Rule 4 enables way to be offered on the foreign defendant by any worldwide agreed way of service, for example means allowed through the Hague Convention, but Taiwan isn't a party to many worldwide contracts, such as the Hague Convention.
Rule 4 also authorizes service by letters rogatory or pursuant towards the foreign country's laws and regulations regulating domestic service of process. However, the letters rogatory process takes several weeks to accomplish, because it requires the help of courts and government offices both in nations. Service of foreign process pursuant to Taiwan's laws and regulations is believe it or not cumbersome, because Taiwan's law requires service to make through the clerk of Taiwan's court.
Therefore the complaintant switched to FRCP 4(f)(2)(C)(ii), which allows way to be offered on the foreign defendant - unless of course prohibited through the foreign country's law - by mail the clerk addresses and transmits, which needs a return receipt. Upon plaintiff's request, the U.S. clerk mailed the summons and complaint towards the defendant's office in Taiwan by FedEx and something of defendant's employees signed the delivery receipt.
The defendant then gone to live in dismiss the experience for inadequate service of process, declaring service by FedEx isn't allowed under Taiwan law, so it should be considered prohibited, for reasons of FRCP 4(f)(2)(C)(ii). A legal court could not agree, holding services are not prohibited under foreign law unless of course it's specifically prohibited also it found the service by FedEx was proper.
Incidentally, the complaintant also might have switched to FRCP 4(f)(3), which allows way to be offered "by other means not prohibited by worldwide agreement" (upon order from the court). It ought to be noted that courts aren't unanimous in approving fast-track methods to worldwide service of process. However, numerous Western courts have approved expedited solutions, permitting worldwide service by e-mail, Facebook by service around the foreign company's U.S. attorney.
Like a practical matter, service by FedEx might be a suitable solution where the first is only seeking declaratory relief within the U.S., but a complaintant should think hard before trying this type of tactic inside a situation where enforcement might be needed within the defendant's country. In Taiwan, an overseas judgment can't be enforced until it's been identified by a Taiwan court and there is a fair likelihood Taiwan courts may won't recognize any judgment where service is made by mail, e-mail or any other unorthodox means.
Finally, accused ought to be reminded never to ignore attempted service of process, no matter how improper it seems, because the complaintant will then take defendant's default and acquire a default judgment, which might be near impossible to overturn. Best practice dictates the defendant must always file a motion to quash the attempted service.
Interesting interest. Please contact our lawyers should you require help with service of process in Taiwan or you can take a look at our blog for additional articles on worldwide technology law.
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