Valid Service under the Hague Service Convention
English to German legal translation services are required for service of process in Germany. The Hague Service Convention provides for a method of delivering judicial and extrajudicial documents from the U.S. to Germany. Parties involved in international legal proceedings should become well versed in the Hague Service Convention’s requirements to ensure valid service of process. The case discussed below illustrates some of the issues that may arise when serving process under the Hague Convention.
How Does Service of Process under the Hague Convention Work?
The Hague Service Convention offers a formal process for ensuring that parties involved in legal disputes that are located in different countries are properly notified and can participate in legal proceedings. It promotes fairness and due process in international litigation.
Each country that is a signatory to the Hague Convention designates a Central Authority responsible for receiving and processing requests for service of documents. In the U.S., it is the Office of International Judicial Assistance at the Department of Justice. The party that filed the legal action sends the documents to be served to its own country’s Central Authority. Those documents are then forwarded to the Central Authority in the defendant’s country, which serves the documents. Once service is effected, the Central Authority provides a certification of service to the Central Authority in the plaintiff’s country. The plaintiff is then notified of the successful service. If there are any issues with the documents provided by the plaintiff, the Central Authority in the recipient country lets the plaintiff know about them.
A Cross-Border Patent Infringement Case Develops
The case Tigo Energy, Inc. v. SMA Solar Technology America LLC and SMA Solar Technology AG, No. 22-915-GBW, 2023 WL 6990896 (D. Del., Oct. 23, 2023) involves Tigo Energy, Inc. (Tigo), a US company that makes and sells solar products. Tigo has various patents that it believed were being infringed upon by a competitor SMA Solar Technology America LLC (SMA America), which is a subsidiary of the German company SMA Solar Technology AG (SMA AG). Tigo filed a complaint in the District of Delaware against SMA America. SMA America then filed counterclaims against Tigo, which referenced SMA AG. Tigo believed that the companies had collaborated in their infringement of Tigo’s patents. This prompted Tigo to amend its complaint and add SMA AG as a defendant in the case. However, SMA AG’s principal place of business is in Niestatel, Germany. Additionally, SMA AG is not registered to do business in Delaware and does not have offices in Delaware or anywhere in the US. Since SMA America’s and SMA AG’s joint attorney refused to accept service of Tigo’s amended complaint, Tigo set out to serve SMA AG under the Hague Convention.
Federal Rule of Civil Procedure (FRCP) 4(f)(1) allows for service under the Hague Convention and, since Germany is a signatory to the Hague Convention, Tigo made a first request for service of process of its Amended Complaint. This first request was rejected by the German Central Authority.
Tigo later resubmitted the request, which was approved by the German Central Authority, which then certified that service of process was made on SMA AG. It is important to note, however, that the documents were neither delivered by registered mail nor delivered directly to SMA AG.
Instead, the documents were served upon another entity, apparently a cleaning company (Richter Gebaeudedienste GmbH). Additionally, the documents did not include a summary of the documents served nor was there a complete German translation of the English language documents.
SMA AG Moves to Dismiss
A defendant can move to dismiss a case if service of process was insufficient. The Court has discretion to dismiss a case or quash service if service under the Hague Convention was found to not have been made properly.
SMA AG made various arguments in its motion to dismiss Tigo’s amended complaint. We will focus on the argument involving the validity of the service of process under the Hague Convention. SMA AG argued that service of the amended complaint was improper and invalid because it was not made on an SMA AG employee and instead had been made on another company entirely. SMA AG also argued that the documents served did not include a summary page and were not fully translated from English into German. In short, SMA AG argued that Tigo had not followed the exact procedure prescribed by the Convention when serving process on it.
The Court disagreed with SMA AG. It referenced a recent case, Conformis Inc. v. Zimmer Biomet Holdings (D. Del. June 3, 2022), where a defendant’s objections to documents served through the Hague Convention were rejected. In that case, the defendant moved to dismiss claiming that documents served used a web-linked index instead of attachments, no English to German translation of the exhibits was included and that linked exhibits that differed from those docketed. All of this resulted in improper service. The Conformis Court noted that there was no evidence that a partial German translation of the English documents had made service ineffective. It also noted that the Central Authority involved in that case had not objected to the documents, which created a presumption that they conformed with the Convention’s requirements. Finally, the Conformis Court noted that what is important for valid service is that there be actual notice rather than strict adherence to the Convention’s requirements.
In the current case, the Court emphasized that a lack of objection from the German Central Authority implied compliance with the Convention. SMA AG’s claim that documents were delivered to an employee of another company rather than SMA AG itself did not constitute proof of improper service. The court emphasized that as long as the plaintiff, in this case, Tigo, made a good faith attempt to comply with the Convention, the court would not dismiss the claim based on a technical defect by the German Central Authority unless the defendant could prove a lack of actual notice.
Crucially, SMA AG was aware that the Amended Complaint and its exhibits were available upon request, demonstrating actual notice. Tigo had even requested SMA AG to waive service, which SMA AG’s counsel declined. Following service by the German Central Authority, SMA AG had also contacted Tigo about the executed summons, allowing SMA AG to prepare a motion to dismiss promptly. Since SMA AG had actual notice, the court rejected the argument that service was insufficient and denied SMA AG’s motion to dismiss on that ground.
Get in touch with All Language Alliance, Inc. to obtain certified German translation services for service of process in Germany, and to schedule a German deposition interpreter for an on-site deposition, or for a Zoom deposition.
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