Changes to the Federal Rules of Civil Procedure Affecting International Litigation - Part 3 Chapter 11 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
The amendments to Rule 4 the Federal Rules of Civil Procedure, which became effective on December 1, 1993, have changed the manner in which a federal summons must be served on foreign as well as domestic defendants. In addition to effecting a reorganization of Rule 4, the amended rule governs the form, issuance and methods for effecting service of a summons. The changes with the greatest significance for attorneys involved in litigations against foreign defendants are new waiver-of-service provisions, amended rules for serving private and sovereign foreign defendants and a provision for worldwide service of process.
Waiver of Service
Rule 4(d), replacing the provisions for service by mail of former Rule 4(c)(2)(C)(ii), (D) and (E), establishes a waiver-of-service regime. The provisions apply to any individual (other than an infant or incompetent person) and to any private sector corporation, partnership or unincorporated association who or which is amenable to service of process. Service on a foreign state, including any political subdivision, agency or instrumentality thereof, is not subject to the waiver-of-service provisions of Rule 4(d), although a plaintiff is not expressly prohibited from requesting a foreign sovereign defendant to waive service. Unlike service by mail under former Rule 4(c)(2)(C)(ii), which was apparently authorized only for defendants located within the forum state, the new waiver-of-service provision is applicable to defendants wherever found.
A plaintiff may employ the Rule 4(d) waiver provisions by sending to the defendant, by first-class mail, or “other reliable means,” including by facsimile, a copy of the complaint, a notice of the commencement of suit and a request that the defendant waive service. The notice and request must be in writing and addressed to the proper party, identify the court in which the action is pending, set forth the date of the request and inform the defendant of the consequences of its failure to comply with the request, and both must be provided to the defendant in duplicate, along with a prepaid means for the defendant to comply with the request in writing. If the defendant fails to waive service, the mere receipt of the request does not oblige the defendant to answer the complaint, provide a basis for a default judgment or toll a statute of limitation that runs until service is effected.