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Civil Procedure – Overseas Defendant – Substitute Service

In this action arising out of an alleged bid-rigging scheme among certain European and American companies with respect to rates charged to the U.S. government for transport of military personnel and their families to and from duty posts in Europe, an Alexandria U.S. District Court defers to a German court decision that this action does not fall under the Hague Convention, and plaintiffs can use substitute service of process for the two German defendants.

The German authorities have clearly concluded that this action is not within the category of cases covered under the Hague Convention, as delineated under Article I. In assessing permissible service under Fed. R. Civ. P. 4(f), this court finds that judgment dispositive on the issue of whether the Hague Convention applies to service abroad in this case, even though an American court would undoubtedly consider this action “a civil or commercial matter” within the American legal system. This court defers to the judgment of the German authorities on this point. Based on the decision of the Frankfurt Appeals Court that the action is not within the scope of Article I of the Hague Convention, this court finds that for the purposes of determining available service under Rule 4(f), the Hague Convention does not apply to service of the third amended complaint.

As the Hague Convention does not apply, substitute methods of service can be used to serve foreign defendants pursuant to Rule 4(f)(3) without regard to the Hague Convention. As the Hague Convention does not apply, service on local counsel and through publication in Germany is not prohibited by the Hague Convention, meets constitutional muster under the circumstances of this case and is otherwise appropriate.

U.S. v. Birkart Globistics GmbH & Co. (Trenga, J.) No. 1:02cv1168, Feb. 4, 2010; USDC at Alexandria, Va. VLW 010-3-061, 12 pp.

VLW 010-3-061

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