Monday, December 15, 2008

Foreign Defendants and Service of Process under State Law

The New York Court of Appeals recently handed down an interesting opinion regarding service of process upon foreign defendants in their home country.  The suit involved a forfeiture proceeding initiated by the New York attorney general seeking to obtain the proceeds from a money transfer operation based in Brazil.  The plaintiff served the Brazilian defendants in Brazil in accordance with the NY service of process statute.  The trial court held that the service of process was invalid because it failed to comply with the Inter-American Convention on Letters Rogatory as well as the service requirements of Brazil.  Brazil requires that a foreign plaintiff serve a Brazilian party using letters rogatory or a letter of request sent through diplomatic channels.  The intermediate appeals court affirmed, holding that the service procedures were improper because "they did not comply with Brazilian law and failed to defer to principles of international comity." 

Arguing before the NY Court of Appeals the plaintiff asserted that because service was proper under the NY statute, the defendants were properly served.  As to the comity argument, the plaintiff argued that "principles of comity do not warrant the importation of another country's service of process rules."  The high court first made clear that the plain text of the statute did not require a NY plaintiff to comply with any foreign locale's service of process requirements.  The court then quickly dispensed of the comity argument:  "Thus, comity is not an additional hurdle for a plaintiff to overcome in serving a party in a foreign country, and defendant's claim that plaintiff should have complied with Brazilian law, which requires that service of process by a foreign party upon a party domiciled in Brazil must be made by letters rogatory, is without merit."

Read the full opinion here.


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