Case Update (2020): Winston v. Walsh; International Service of Process using the Hague Service Convention

The Eleventh Circuit handed down a recent international service opinion in Winston v. Walsh.  The parties are divorced.  They had a son, who, post-divorce, died while in Walsh's (Father's) care.  No criminal charges were filed, but Winston (Mother)  filed a wrongful death action in Georgia state court.  By this time, Walsh, who was originally from the United Kingdom, had returned, was living there, and was remarried.  Winston dismissed her state court lawsuit, and brought a renewal action in the U.S. District Court.  The renewal action can only proceed, however, if the original action was valid, which Walsh says is not true since Winston never properly served him in the U.K.   Winston had attempted service, using the Hague Service Convention.  Winston had no idea where Walsh resided, but hired a P.I., and ultimately served him at an address where his sister lived and worked. Walsh's new wife also used that address on some business documents.

When using the Hague Service Convention, one typically prepares paperwork that is transmitted to the foreign Central Authority for that government office to serve the papers according to its internal law.  When service is complete (or, if it is not completed), the Central Authority returns a certificate (of service).  The court sought to ensure that service was conducted according to the FRCP, and that required looking at English law, which provided that a "summons may 'be served by . . . leaving it at a place specified in rule 6.7, 6.8, 6.9, or 6.10.' [citations omitted] Rule 6.9 addresses serving an individual who has not provided an address, stating that such individuals should be served at their '[u]sual or last known residence.'"  English caselaw elaborates on what the law requires when determining a person's usual or last known residence.  It is a fact-intensive analysis, including both litigants' actions and knowledge.  Winston did not provide sufficient evidence that the address at which Walsh was served was his residence at any point in time.  Winston also argued that the certificate of service, received from the Central Authority, was prima facie evidence of adequate service, but there must, nonetheless, be substantial compliance with the FRCP, which did not exist here because Walsh never resided at the address used for service.

As a few reminders: You cannot use the Hague Service Convention without an address, and it is the plaintiff's job to ascertain that address, not the Central Authority.  

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Ted Folkman shared the following on 10/29/2020: Thanks for this case note, Melissa Kucinski! I am glad this is an unpublished decision. The usual rule that Article 6 certificates are prima facie valid is a good one, and it may be that the unusual facts here justified another result, but whenever a US court gets into the nitty-gritty of whether the foreign service complied with the relevant foreign procedural law, something has probably gone amiss.