The purpose of this report is to render my assessment, as NAPPS
President, of our current involvement in international relations,
and to make suggestions to the membership for future activity.
Despite several articles published in TDS,1 numerous board
decision regarding this topic, as well as extensive reports to the
NAPPS membership by the Chair of the International Relations
Committee and others 2, there remains a lack of understanding
among a portion of the membership as to what our role in
international relations is, and what are the benefits to the
membership as a whole in having expended approximately
$88,000 since 1996 for international activity. 3 These
expenditures may well exceed $100,000 in 2006 as a result of our
commitment to attend and host a reception at the upcoming UIHJ
conference in Washington, D.C.4
In an attempt to provide answers to these questions, I have
identified five areas of possible involvement by private process
servers in international litigation. In this report, I will briefly
examine those areas to see if private process servers can
realistically participate in them sufficiently enough to warrant
continued allocation of manpower and financial resources by this
association. These five areas are (1) privatization of service of
foreign process within the United States; (2) service of U.S.
process in foreign countries; (3) evidence taking in the United
States in aid of foreign litigation (4) enforcement of foreign
judgments in the United States and; (5) privatization of judgment
enforcement in the United States.
1 See Appendix I
2 See Appendix II
3 See Appendix III
4 See UIHJ Permanent Council Report in the
November/December 2005 issue of TDS, page 24.
Privatization of Service of
Foreign Process within the United States.
As reported in the November/December, 2005 issue of TDS, one
of the joint goals of the UIHJ and NAPPS was to privatize the
service of international process that was ineffectively and
inefficiently handled by the United States Department of Justice
(DOJ) as the US Central Authority for such purposes. NAPPS
embarked upon an effort to have the DOJ delegate that
responsibility to a private contractor. After much work and
expense, the DOJ acquiesced and requested bids from the public.
Although NAPPS had hoped to participate in that process as a
successful bidder, that was not to be. Another NAPPS member
won the bid and currently oversees the service of international
process within the United States. It is estimated that annual
revenues derived from this activity are at a minimum $600,000
and increasing, all of which now inures to the benefit of private
process servers. This would not have been possible without the
NAPPS initiative.
That having been accomplished, there appears to be no further
role for NAPPS to engage in other than to possibly await the rebidding
of the DOJ contract. Should that occur in the future, I am
of the opinion that serious consideration should be given to
whether this is a role that the NAPPS bylaws, or our non-profit
corporate status, permit, or whether we should be engaged in this
at all.
Service of U.S. Process in Foreign Countries
There are several companies that specialize in the service of
process originating in the United States and served in foreign
countries. Some of these companies have employees that are
members of NAPPS. This type of work is highly specialized.
Most NAPPS members are not sufficiently experienced nor care
to handle such work. In my opinion, NAPPS members would be
best served by being educated on the general nature and
complexity of service of process in foreign countries to the extent
that they can advise their clients and refer the work to competent
NAPPS members. This education can be provided to the
membership through seminars at the NAPPS Annual
Conferences and Educational Seminars as well as publications in
The Docket Sheet. Those members interested in further pursuing
this type of work can do so on their own initiative.
Evidence Taking in the United States in
Aid of Foreign Litigation
Evidence taking in the United States in aid of foreign litigation
is largely the function of attorneys. In the international arena,
evidence taking is impacted by three factors; the rules of the
originating foreign state, the rules of any treaty or bilateral
agreement that might be in effect, and the rules of the destination
(discovery) state. In many countries, there are domestic rules
that require the foreign litigant to pass through the treaty channel
and require the evidence to be taken by a US court, or even
require that evidence be taken by a foreign consular officer.
Although 28 U.S.C. Section 1782, authorizes a United States
District Court, at the request of a “foreign or international
tribunal or upon the application of any interested person” to order
discovery for “use in a proceeding in a foreign or international
tribunal”, this procedure is utilized in the minority due to the
above considerations. When utilized, as with most legal
proceedings, it is necessary to retain legal counsel to file an
application with the court.
Applications for discovery orders not only involve attorneys but
also, in many instances, require the services of foreign language
translators to convert documents into English. A private process
server’s role in this area is limited to the service of a federal
subpoena that may result from a discovery order being granted.
Service of that subpoena would be no different than service of
subpoenas in domestic federal civil actions.
Enforcement of Foreign Judgments in the United States.
Enforcement of foreign judgments in the United States is
governed by the laws of the states, not the federal government.
Under U.S. law, an individual seeking to enforce a foreign
judgment, decree or order in this country must file suit before a
competent state court. The court will determine whether to give
effect to the foreign judgment. Here again, as with most legal
proceedings, it is necessary to retain legal counsel to conduct the
suit.
Enforcement of foreign judgments in the United States involves a
two-step Process. First, a foreign judgment must be recognized
by a state court of competent jurisdiction. Once recognized, the
foreign judgment may be enforced in the same manner as the
judgment of a sister US state which is entitled to full faith and
credit pursuant to US Constitution and, where adopted,
the Uniform Enforcement of Foreign Judgments Act or the
Uniform Foreign Money-Judgments Recognition Act.5
Once a foreign judgment is recognized by a competent state
court, the second phase of enforcing that judgment typically
involves sheriffs, as well as constables and state marshals, in the
jurisdictions that have them. With the exception of a few states,
private process servers throughout the United States do not serve
nor execute enforceable process.
Privatization of Judgment Enforcement in
the United States.
One of the goals of the UIHJ is to seek the establishment of the
office of “judicial officer” in as many jurisdictions as possible for
the purpose of efficiently serving process and enforcing
judgments.6 Ideally, the UIHJ would like to see the role of
judicial officer instituted in
5See US Dept. of State web site
http://travel.state.gov/law/info/judicial/judicial_691.html
6See UIHJ web site www.uihj.com
“Judicial officers”, in the context used by the UIHJ, are a hybrid
of attorneys, or persons with equal or nearly equal levels of legal
education, who are empowered by their local laws to enforce
judgments, that is to say, execute writs, seize and sell property
for the satisfaction of judgments. These are private individuals
who derive their income from fees charged and commissions
taken on the sale of property. 7These judicial officers are also
known as “Huissiers”.
The profession of huissier is hard to define in US legal terms. It
is a quasi-private, but at the same time quasi-public
(“ministerial”) position that fuses the functions of sheriff, court
bailiff and marshal. Huissiers serve process and seize and
liquidate property to satisfy judgments. Their precise duties vary
significantly by country. In some countries they are magistrates;
while in others, they are the equivalent of sheriffs. Not all are
attorneys. In Europe, there is considerable prestige associated
with the function. In general, there are a limited number of
huissiers per European jurisdiction and the huissier’s lifetime
appointment is confirmed by a local judicial authority, such as a
high court or a ministry of justice.
Privatization of judgment enforcement in United States through
what the UIHJ refers to as “judicial officers” is highly unlikely
and would require significant revisions in the laws of the several
states unless such changes were accomplished by international
treaty approved by the United States Senate and executed by the
President. If such a treaty was entered into, the treaty would
become the “law of the land” applicable to all states. It is worthy
to note, however, that the profession or function of the “judicial
officer” has not been addressed in any treaty negotiation to date.
There is currently an international treaty being discussed
concerning enforcement of judgments in foreign countries. The
focus of current treaty negotiations, however, is not how foreign
judgments will be executed or who will execute them but rather
whether foreign judgments will be recognized and domesticated
in a practical, efficient manner. In Europe, mutual recognition of
court judgments has always been facilitated by the similarity
between European civil law jurisdictions. The framework for
such enforcement was the Lugano and Brussels Conventions and
now, the European Union regulations. The United States is not a
party to those Conventions, or to the European Union.
US civil actions, and the judgments resulting from them,
encompass a number of disturbing aspects, disturbing to the
Europeans, at least. These include anti-trust and class action
lawsuits, lawsuits rendering punitive rather than actual damages,
and treble damages. As a result, US judgments are often denied
recognition abroad and the US has been put at a disadvantage
with respect to international trade.
7 Huissers, or Bailiffs, in the Province of Quebec, Canada are
regulated by tariff and do not receive commissions as part of
their compensation.
The US State Department has worked to resolve this enforcement
issue for years. It attempted to broker an agreement with the
United Kingdom back in the ‘70’s, but discussions broke down
over the issue of high tort awards being handed down by US
courts. In 1996, the State Dept asked the Hague Conference to
step in and draft a Convention on the Recognition and
Enforcement of Foreign Judgments. Negotiations over the
wording on this treaty have been continuing for at least ten years
but there is little headway being made. By way of interim
compromise, the Convention has now mutated into the “Draft
Hague Convention on Exclusive Choice of Court Agreements.”
It thus appears that if an enforcement treaty were to be
successfully put into place, it would unlikely define which
judicial authority was empowered to execute the foreign
judgment. That would remain a question for domestic law. If
NAPPS were to choose to advance the UIHJ agenda with regard
to the institution of enforcement or judicial officers in the US,
that work would have to take place on a state level, with
revisions to local laws, rather than on a federal or international
level. That would be a formidable undertaking involving vast
amounts financial, legal and political resources with very
unlikely results.
Conclusion and Recommendations
It thus appears that the role of private process servers in the
foregoing five areas involving international litigation is, at best,
very limited. Privatization of service of foreign process in the
US has already been accomplished. Service of US process in
foreign countries is highly specialized limited to a few
companies, some of whom employ NAPPS members. Securing
federal court assistance in evidence taking in aid of foreign
litigation is largely the function of attorneys, as is the recognition
of foreign judgments in the various state courts. Lastly, the
privatization of judgment enforcement in the United States is not
a realistic endeavor.
With such limited potential for private process servers, why
should this association continue expending resources that are
unlikely to benefit the general membership? Why not abandon
our involvement in international activities and concentrate,
instead, on domestic issues? Although I have considered these
thoughts, I see several reasons for the continuation of our
involvement in international affairs tempered by a re-analysis of
what our international policy or agenda should be.
First, our bylaws provide that this association engage in activities
for the purpose of “[i]mproving relations between the industry
and the legal community-attorneys, judges clerks and officers of
the court and the general public, both national and international”.
As officers and directors of this association, we are charged with
the responsibility of upholding our bylaws. The extent to which
emphasis is placed on one aspect of our responsibilities over
another is left to the discretion of the board of directors.
Previous boards have steadfastly supported our involvement in
international activities. Should the membership wish for the
current or future boards to take a different course of action, their
collective desire can and should be expressed at the board
meetings and annual conferences, even to the extent of proposing
bylaws amendments regarding our international activities.
Second, this association is comprised of process servers within
and outside of the United States. Currently, we have 49
members from 10 foreign countries who are NAPPS members.
The interests and concerns of those members, especially in the
exchange and service of process between our countries, are of
utmost importance. International dialogue should continue.
Third, the importance of having a voice in as many forums as
possible that may affect process servers should not be
discounted. We live in a rapidly changing global environment, an
environment made smaller and brought closer to us by the advent
of the Internet. International commerce, and the litigation that
inevitably results from it, affects litigants and court decisions in
the United States. The policies and laws affecting service of
process established in other countries can and, undoubtedly, will
affect policies and laws in this country. We need to be aware of
these and, wherever possible, affect change for the benefit of
private process servers. In my opinion, we need to be at the
conference tables to participate in the discussions that may affect
us. Withdrawing from international participation will not allow
us to be part of those discussions.
An example of the benefit of participating in international forums
is illustrated by Fred Blum having been invited to speak before
the Hague in Geneva, which appearance and participation
affected a decision on electronic service of process that would
have been adverse to process servers. Furthermore, our
attendance and participation at UIHJ meetings has afforded us
the opportunity to present our views on several topics, including
the NAPPS Best Practices on Service of Process, to that body.
This recognition, audience and participation has value that
should not be abandoned. The prestige of this association and
opportunity to be heard should be extended wherever possible.
It has been stated that as a result of the successful efforts that
NAPPS undertook to privatize international service of process in
the United States at the behest of the UIHJ, we are viewed as the
leading process server association in the United States. My
recent experience while attending the UIHJ conference in Paris
bore this out. We are viewed positively, with the highest respect
for our association and our members. Our efforts and opinions
do seem to matter. These favorable comments notwithstanding, I
nonetheless believe that it is the opinion of the NAPPS
membership that matters most. I therefore recommend the
following:
- That the membership of this association expresses its informed
opinion with respect to our future involvement in international
activities, and that a defined policy or agenda be established. This
can best be accomplished by attendance at the next NAPPS Annual
Conference where discussions can be had, and where a member’s
vote counts. If members cannot attend the Annual Conference,
correspondence to this office is invited.
- That, until such time as the membership of this association
mandates a contrary view, the Board of Directors continue to
uphold the NAPPS bylaws and previously adopted resolutions
regarding our international activity, exercising due discretion by
establishing and publishing a defined policy or agenda.
- That the discretion exercised by this and future boards with
respect to the allocation of resources and expenditure of funds for
international activity be proportionate to the goal to be achieved.
In this regard, I would recommend that we curtail the expenditure
of funds to attend UIHJ meetings and limit such NAPPS funded
attendance, when necessary, to only one (1) person designated by
the president to attend. All other interested NAPPS members may
attend, especially now since the UIHJ has opened its membership
to a new category of “UIHJ Club Member[s]”.8 Those members
that do attend should do so at their own expense.
8See UIHJ Permanent Council Report in the
November/December 2005 issue of TDS, page 23
APPENDICES
Appendix I. Overview of articles/commentary appearing in
The Docket Sheet.
June 1992, President’s Message (Ezell) re Bruno A. Ristau;
Foreign Services. Cover page,
pages 4, 7.
July, 1992, Profile of Frank R. Britton, Jr. re service in
Mexico, pages 14, 15.
August-September, 1992, Photo and comments re Bruno
Ristau, page 7.
March-April, 1996, President’s Message (Tamaroff) re
international expansion, page 3.
July-August, 1996, In Memoriam Badouin Gielen, page 4.;
Bailiffs of Justice in the Province of Quebec by Michele
Paquette, page 21.
March-April, 1997, NAPPS and UIA Officers Meet in
Philadelphia, Cover page; President’s Message (MacDonald)
re UIHJ and DOJ, page 3.
1997 Conference Booklet-International Committee Report,
page 32; Copy of UIHJ Protocol Agreement, page 33.
July-August, 1997, Photos from Stockholm, page 13; UIHJ
Protocol Agreement, pages 14 & 15; Protocol Agreement
attached.
1998 Conference Booklet- Letter from DOJ, page 22;
International Affairs Committee Report re DOJ, UIA Congress
and UIHJ, pages 44-45.
September-October, 1997, Photo Justice O’Connor/Fred
Blum at UIA Meeting in Philadelphia, PA, Cover page; Photo
UIHJ members, page 20; Commentary, page 25.
May-June, 1998, Photo Collins in London, Cover page, page
33.
September-October, 1998, “UIHJ Features NAPPS Meetings
and President”, page 39.
1999 Conference Booklet, President’s Message re UIHJ,
page 6.
July-August, 1999, Photo of UIHJ members, Cover page;
Committee Report re International Committees, page 10;
Flash Back on Chicago by Michele Paquette, h.j.,
page 26-28.
September-October, 1999, President’s Message (Collins) re
Hague Conference, page 3; International Relations Committee
report re HCPIL and UIHJ, page 7.
March-April, 2000, President’s Message (Collins) re Hague
Convention and international involvement.
2000 Conference Booklet, International Committee Report re
Hague Service Convention, page 28.
September-October, 2000, International Relations Committee
Report re UIHJ and DOJ, pages 26-27.
November-December, 2000, President’s Message (Blum) re
UIHJ, page 3; Board Meeting Highlights by Joe Butler re
UIHJ, page 37.
January-February, 2001, Board Meeting Highlights by Joe
Butler re UIHJ, pages 27, 29.
2001 Conference Booklet, President’s Report re DOJ,
page 4.
November-December, 2001, Profile-“Who is John Talbot?”,
pages 33-35.
January-February, 2002, President’s Message (Blum) re
DOJ and UIHJ, pages 3, 37, 39.
2002 Annual Conference Booklet, President’s Message
(Blum) re DOJ; International Committee Report re Hadue
Convention, DOJ and UIHJ, page 24.
July-August, 2002, Highlights of Board Meeting by Joe
Butler re UIHJ, pages 39, 41.
Fall, 2002, President’s Message (Butler) re UIHJ and DOJ,
page 3; International Committee Special Report re DOJ,
page 5.
December, 2002, Photo, Collins, et al, Cover page;
International Relations Committee-Special Report re UIHJ and
DOJ, pages 14-15; Highlights of Board Meeting by Joe Butler
re DOJ, pages 35-36.
Fall, 2002, “Springtime in Italy” (Photos), pages 16-17.
February, 2003, “Viva La France, International Relations
Opinion” by Larry Roth, page 7; Highlights of Board Meeting
re ABC, DOJ and UIHJ, pages 43, 47.
March, April, 2003, Highlights of Board Meeting re DOJ
update, page 5.
2003 Conference Booklet, Minutes of Prior Annual Meeting
re DOJ and UIHJ, pages 16, 17; International Relations
Committee Report re DOJ, UIHJ and Hague Conference on
Private International Law, page 22; International Relations
Report from Tunisia re UIHJ,
page 35.
September-October, 2003, “UIHJ Delegation Visits the
United States of America” Photo, Cover page, page 13; Article
re ABC Legal Services/UIHJ, pages 8-11; Minutes of prior
meeting re UIHJ, pages 33, 35.
2004 Conference Booklet, International Relations Committee
Report re UIHJ, pages 12-13; Minutes of prior meeting re
UIHJ, page 23; International Relations Report re UHIJ tour of
ABC offices Hague Service Convention and 2006 UIHJ
meeting in Washington DC, pages 29-30.
2005 Conference Issue, International Relations Committee
Report re UIHJ, page 19; International Relations Committee
Report re 2006 UIHJ Washington, DC meeting, 2004 UIHJ
Permanent Council Meeting, pages 34-35.
November-December, 2005, UIHJ Permanent Council
Report, pages 23-25. International Relations Committee
Report, pages 26-27
Appendix II. Board Resolutions Regarding International
Expenditures.
(Source: NAPPS Book of Resolutions 10/10/82 thru 8/22/04)
January 14, 1995-New Orleans, LA (Winter)
[Motion] moved, seconded and carried (6-2) that NAPPS
budget up to $10,000 for a contingent to attend the UIHJ
meeting in the Netherlands. (F.Blum)
[Motion] moved, seconded and carried (6-2) that the
contingent consist of Paul Tamaroff, Alan Crowe and George
MacDonald. (F.Blum)
July 29, 1995-Williamsburg, VA (Summer)
[Motion] moved seconded and carried that Fred Blum be
reimbursed his airfare to Europe and his hotel expenses at The
Hague. (C. Melvin) [Mr. Blum objected to the motion and
declined the reimbursement. Nonetheless, it was the board’s
feeling that the money be available to him to use in a manner
of his own choosing.]
July 20, 1996-Salt Lake City, UT (Summer)
[Motion] moved, seconded and carried (8-0) that we send
designated representative-the same as last year’s delegation to
the Hague-to the UHIJ meeting in Paris. (P. Tamaroff)
February 22, 1997-Orlando, FL-Special Board Meting
Motion by Paul Tamaroff, that now and in the future, in the
matter involving foreign delegations, a budget should be
passed for expenses and the then President will determine who
will go as part of the delegation. Seconded by Lee Russell.
Motion carried with 1 abstention (Blum).
January 17, 1998-Phoenix, AZ (Winter)
[Motion] moved by Andy Estin that NAPPS budget $5,000 for
trip to London to attend UIHJ meeting. Seconded. Tied 3-3
with 2 abstentions. Chair voted Yea.
August 14, 1999-Portland, OR (Summer)
[Motion] moved, Seconded and Carried (5-0) that $2,000 be
allocated towards travel and lodging expenses to Fred Blum
for his attendance to participate in the Geneva Roundtable
meeting relating to Electronic Commerce and the Internet.
(Rustand/MacDonald. Fred Blum abstains and Jeff Karotkin
absent.)
February 12, 2000-San Antonio (Winter)
Motion by Thomas MacDonald to allocate up to $15,000 for
the UIHJ Congress in May of 2000. Seconded by MaryLee
Rustand. Carried 6-0 with two abstentions. (Fred Blum and
Bruce Lazarus)
November 3, 2000-St. Louis, MO (Fall)
Thomas MacDonald moved to authorize $2,500 for Sue
Collins to attend the UIHJ meeting in Paris November 22-24,
2001 at which time she will make a presentation on Hague
enforcement in the U.S. Passed 8-0. Fred Blum will also
speak at the meeting but will attend at his own expense.
February 10, 2001-San Diego, CA (Winter)
Thomas MacDonald moved, seconded by Ron Ezell, to
approve budget for Sure Collins and Fred Blum to attend the
June 2001 meeting of the UIHJ in Antwerp. Passed
November 16, 2002-Washington, DC-(Fall)
Motion by Thomas MacDonald, seconded by MaryLee
Rustand that $5,000 be budgeted to the International Relations
Committee to attend the 50th meeting of the UIHJ in Paris.
Chairman Fred Blum will attend to report on the DOJ contract
that had been awarded to ABC. Passed 6-0 with one
abstention (Blum)
February 22, 2003-Las Vegas, NV (Winter)
Discussion re expenses in attending UIHJ meetings. Fred
attend 50th meeting of the UIHJ in December, 2002 and Sue
Collins will be attending the UIHJ Congress in Tunisia in June,
2003. Motion made by Thomas MacDonald, seconded by
MaryLee Rustand that the Internal [International] Relations
Committee have a budget of $5,000 for the purpose of
attending UIHJ meetings both now and in the future. Passed
7-1 (David Nill)
November 19, 2005-Dallas, TX (Fall)
Discussion had regarding February 22, 2003 resolution
establishing a budget of $5,000 for the purpose of attending
UIHJ meetings. Issue arose whether the $5,000 allocation was
a yearly limit, or a per-meeting limit. Motion made by Andy
Estin, seconded by Thomas MacDonald to authorize a budget
of $5,000 for each [UIHJ] meeting attended.
Motion passed
8-0.
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