In today’s interconnected and diverse world, interaction among countries is unavoidable. One such cross-border interaction is getting jurisdiction in a legal action pending in one country over a person living in another country.
When a lawsuit is filed in court, the latter must acquire jurisdiction over the person of the defendant. Generally, a summons (court document with a statement about a lawsuit which requires defendant to answer the complaint attached to it) must be served on (given to and received by) the defendant to acquire jurisdiction over him or her. But how does the court do this when the defendant is outside the court’s territorial jurisdiction, as when the defendant lives in the Philippines?
Most countries and states have rules on out of country or extraterritorial service of summons. At the US federal level, the rule is found in Rule 4(f) of the Federal Rules of Civil Procedure (FRCP). Under Rule 4(f), extraterritorial service may be effected by any of the following means:
• By any of the internationally recognized means of service that is reasonably calculated to give notice, such as those authorized under the Hague Service Convention.
• If there is no internationally agreed means, by a method that is reasonably calculated to give notice, such as the following:
(a) by means prescribed in the country of destination;
(b) by means prescribed by the country of destination in response to a letter rogatory;
(c) by personal delivery or by any form of mail addressed by the clerk of court and requiring a signed receipt, unless prohibited by the law of the destination country.
• By any means not prohibited by international agreement.
Take note that the US is signatory to the Hague Service Convention (the Convention) and Inter-American Service Convention on Letters Rogatory (IASC). The Convention is intended to streamline the extraterritorial service of process among member countries to avoid delays and costs normally present in using letters rogatory.
A letter rogatory is a request from the court where a lawsuit is pending that is directed to the authorities of another country for the service of summons or other legal processes on a person within its jurisdiction. This process usually involves the state or foreign affairs departments of both countries and takes anywhere from several months to a year.
The IASC, on the other hand, is also a means of streamlining the extraterritorial service of process, but it involves South and Central American countries which are not signatories to the Convention.
Unfortunately, the Philippines is a signatory of neither conventions. Nonetheless, as discussed above, service of summons and other legal processes may be done under FRCP(f) for federal cases, specifically by mode of service under the Philippine Rules of Civil Procedure and by means of letters rogatory.
Under Rule 14, Sections 6 and 7 of the Philippine Rules of Civil Procedure, service of summons is done in the following manner:
• Personal service – effected by handing a copy of the summons to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.
• If personal service is not possible, substituted service – effected by leaving copies of the summons and complaint at the person’s residence with some person of sufficient age and discretion or person’s office or place of business with some competent person in charge thereof.
Also, under Section 14 of the same Rule, if defendant’s whereabouts is unknown, which is not uncommon in these types of cases, service by publication is allowed upon leave of court at such place and for such number of times as the court may allow.
In other words, if service is done under any of the above means, then the service complies with FRCP, Rule 4(f). Although Rule 4(f) also mentions letters rogatory, by mail or means not prohibited by international agreements, it is more advisable to effect service in accordance with Philippine law, as outlined above. This will later on prove beneficial if it becomes necessary to enforce the US judgment in the Philippines, since in such cases opposing parties usually try to impugn the validity of service of summons to show that the US court failed to acquire jurisdiction over the defendant.
What if the case is pending in state court? Then we look into the particular state’s extraterritorial rules on service of summons. In California, the applicable rule is found under Code of Civil Procedure (CCP), Section 413.10. In sum, the modes of service are as follows:
• In accordance with the Code, which is (a) personal service – accomplished by delivering a copy of the summons and the complaint to the person to be served or (b) substituted service – accomplished by leaving the summons and complaint at the defendant’s office or non-P.O. Box mailing address to a person at least 18 years of age and by mailing a copy of the summons and complaint at such office or mailing address.
• As directed by the Court in which the action is pending.
• By the law of the place where the person is served, if the court finds that the service is reasonably calculated to give actual notice.
• As directed by the destination country in response to a letter rogatory.
Again, to avoid problems if and when enforcement of the US judgement in the Philippines becomes necessary, it is advisable to use the methods of service under Rule 14, Sections 6,7 or 14 of the Philippine Rules of Civil Procedure, which are (1) personal service; (2) substituted service, if personal service is not possible; or (3) service by publication, if defendant’s whereabouts is unknown.
The above modes of service are justified under Section 413.10(c) of the CCP by the phrase “if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served . . .” Note must be taken, however, that the court must find that the service is reasonably calculated to give actual notice.
Given the fact, however, that both California and Philippines prefer personal and substituted service and have substantially similar procedures, the California court should have no problem finding that the service was reasonably calculated to give actual notice to defendant. But if service was done by publication, the plaintiff will probably have to justify its sufficiency because California has no specific provision on service by publication.
California also recognizes letters rogatory, but as already discussed this process is costly and takes too much time.
Finally, whether the case is federal or state, the return of service (report of the person who served the summons, usually in affidavit or declaration form) must be authenticated by the US Consulate in Manila to ensure its admissibility in the US.