§ 5.5 Selected Areas of Litigation Topics

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 5.5 SELECTED AREAS OF LITIGATION TOPICS

§ 5.5-1 Service of Process

Service of process in a family law action involving a foreign national often requires that service on an individual be made abroad. An international treaty may apply.

"Under ORCP 4, an Oregon Court does not have [personal] jurisdiction over a defendant unless there is service of summons pursuant to ORCP 7." Baker v. Foy, 310 Or 221, 224, 797 P2d 349 (1990), superseded by statute on other grounds, Or Laws 2003, ch 296, § 1, as recognized in Ziniker v. Waldo, No CV-06-1042-ST, 2007 US Dist LEXIS 8623 at *25-26 (D Or Feb 6, 2007). The United States Constitution requires that a petition and summons must be served, either inside or outside the state, in any manner reasonably calculated under all the circumstances to apprise a defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. Mullane v. Cent. Hanover Bank & Tr. Co., 339 US 306, 314-15, 70 S Ct 652, 94 L Ed 865 (1950). This is codified in ORCP 7 D(1). See, e.g., ORS 107.135(1); ORS 107.431(1)(b); ORS 109.724 (all requiring proper service in family law actions).

§ 5.5-1(a) Adequacy of Service

The concept of notice and service of process is rooted in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In ruling on the sufficiency of service under the Due Process Clause, the United States Supreme Court held that when the parties to a case are unknown and their interests or location cannot be ascertained with due diligence, service through publication grants reasonable notice to satisfy the requirements of due process. Mullane v. Cent. Hanover Bank & Tr. Co., 339 US 306, 314-17, 70 S Ct 652, 94 L Ed 865 (1950).

Oregon case law expands on Mullane by providing a "totality of the circumstances" test to determine if service was reasonably calculated to provide notice and opportunity to appear (in adherence to the reasonable-notice standard of ORCP 7 D(1)). Baker v. Foy, 310 Or 221, 224-25, 797 P2d 349 (1990), superseded by statute on other grounds, Or Laws 2003, ch 296, § 1, as recognized in Ziniker v. Waldo, No CV-06-1042-ST, 2007 US Dist LEXIS 8623 at *25-26 (D Or Feb 6, 2007). The method of service is to be evaluated against the totality-of-the-circumstances test to determine whether the calculated notice was either actual or adequate. To be valid, a defendant must receive adequate service in compliance with ORCP 7. When a defendant receives actual notice of the proceeding, it does not equate with adequate service and notice. Baker, 310 Or at 227-30.

An overview of international service ("service abroad") is set forth in § 5.5-1(b).

§ 5.5-1(b) Service of Process Abroad

The United States is a member of the Hague Conference and a state party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov 15, 1965, 20 UST 361 [hereinafter Hague Service Convention]. See < www.hcch.net/en/instruments/conventions/full-text/?cid=17 >. If the intended recipient is residing in a country that is also a member or nonmember party of the Hague Service Convention, then adherence by a U.S. litigant to the Hague Service Convention rules is mandatory and the exclusive conduit for effective service abroad. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 US 694, 705, 108 S Ct 2104, 100 L Ed 2d 722 (1988).

CAVEAT: The Hague Service Convention applies to family-law actions. The court in Saysavanh v. Saysavanh, 2006 UT App 385, 145 P3d 1166, 1172 (2006), ruled that a default divorce had to be vacated when the husband failed to serve the wife, who was living in Mexico, in accordance with the Hague Service Convention. In a more recent case, the Texas Court of Appeals reversed and remanded a state court's denial of a motion for new trial when the serving party knew the respondent's address and violated the convention's requirements of exclusivity by the use of direct mail rather than transmitting through Mexico's designated central authority as the convention requires. Velasco v. Alaya, 312 SW3d 783, 799-800 (Tex App 2009).

The Supremacy Clause declares the United States Constitution, federal law, and treaties to be the "supreme Law of the Land." US Const Art VI, cl 2. Thus, the Hague Service Convention is paramount, and preempts all inconsistent methods of service that may be provided by state law (e.g., ORCP 7 D(2), D(3)(a)(i), D(5), D(6)(a)). This allows any methods authorized by the various state rules of civil procedure (e.g., the Oregon Rules of Civil Procedure) to serve as adequate methods of service as long as the Hague Service Convention does not prohibit such methods. Under the Supremacy Clause, failure to follow the convention articles may lead to service not being effective and to lack of personal jurisdiction over the opposing party. To determine who is a party and who is not, see the Hague Conference website at < www.hcch.net/en/instruments/conventions/status-table/?cid=17 >.

§ 5.5-1(c) Inter-American Convention on Letters Rogatory

Letters rogatory are "a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment." 22 CFR § 92.54. In the United States, letters rogatory "have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity." 22 CFR § 92.54. The primary authority for letters rogatory is 28 USC § 1781. See U.S. Dep't of State, Preparation of Letters Rogatory, < http://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/obtaining-evidence/Preparation-Letters-Rogatory.html >; see, e.g., FRCP 28(b).

If not a member or nonmember party of the Hague Service Convention (see § 5.5-1(b)), the other party may reside in a country that is a member of the Inter-American Convention on Letters Rogatory, Jan 30, 1975, 1438 UNTS 288, 14 ILM 339 (International Legal Materials), and Additional Protocol to the Inter-American Convention on Letters Rogatory with Annex, May 8, 1979, 1438 UNTS 332, 18 ILM 1238. The Convention is now in force between the United States and Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, Uruguay, and Venezuela. The treaty text is online at < www.oas.org/juridico/english/treaties/b-36.html >, and the status table is at < www.oas.org/juridico/english/Sigs/b-36.html >. The additional protocol is at < www.oas.org/juridico/english/Treaties/b-46.html >. The status table for additional protocol is at &lt...