Serving a Foreign Defendant under FRCP 4(d)

Legal Translations of Summons and Complaints

Federal Rule of Civil Procedure 4(f) states that serving process on a foreign defendant is to be made in accordance with the Hague Convention. Although the Hague Convention intended to create a uniform and fair method of serving process in foreign countries, the reality is that it is expensive, time consuming and overly burdensome. And legal document translation is arguably the only easily solvable aspect of international litigation.

Rule 4. Summons

(f) Service Upon Individuals in a Foreign Country.

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.


To expedite the service of process, many U.S. attorneys utilize Federal Rule of Civil Procedure 4(d), which allows for service by mail and a request for waiver of formal means of service.

Rule 4. Summons

(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.

(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

(2) An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request
(A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under subdivision (h);
(B) shall be dispatched through first-class mail or other reliable means;
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request;
(E) shall set forth the date on which request is sent;
(F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and

(G) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.

(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.

(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.

(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (e), (f), or (h), together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs of service.

According to US law, a Rule 4(d) service is sufficient to satisfy Article 10(a) of the Hague Convention.

Article 10(a) of the Hague Convention states that the Convention’s requirements do not interfere with “freedom to send judicial documents, by postal channels, directly to persons abroad” so long as the county of destination does not object to such form of service.

Thus, international service of process in transnational litigation can be accomplished by mailing the original and a certified translation of a summons and complaint to the foreign defendant. See Kako Co., Ltd. v. Superior Ct. of San Francisco, 33 Cal. App. 3d 808, 109 Cal. Rptr. 402 (1973); Owen F. Silvious v. Ghaith R. Pharaon, 54 F.3d 697 (1995).

To read our language translation blog entry “Professional Language Translation, Certified Translation, and Obtaining Foreign Evidence in Russian Litigation”, click here.

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