Japan filed a formal objection to service by mail under the Hague Service Convention on December 21, 2018, after years of taking an ambiguous position that made many American courts unsure about how to properly serve Japanese defendants.
One great example of the confusion that existed is Nicholson v. Yamaha Motor, 566 A.2d 135 (Md. App. 1989), still the standing precedent on serving Japanese defendants in Maryland courts, in which the court stated:
The compelling facts are that (1) when adopting the Convention, the Japanese were presumably aware of U.S.Fed.R.Civ.P. 4(i), if not the counterpart State Rules such as current Md. Rule 2-121(a), allowing service abroad by restricted delivery mail, (2) since then, they have been made aware of the decisions in many Federal cases that art. 10(a) does not prohibit service in Japan by that method, (3) under that line of decisions, U.S. based assets of Japanese nationals would be subject to seizure to satisfy judgments founded upon such service, and (4) in their only Declaration on the matter, they did not expressly negate the validity of such service, reserving only whether their own courts might find it wanting. When given an opportunity, Japan did not regard service by mail as an infringement upon its sovereignty… Principally on that basis — because otherwise there are compelling arguments on both sides of the issue — we conclude that service may be effected on a Japanese defendant pursuant to Md. Rule 2-121(a).
Now, it is safe to say that unless an authorized method for service within the U.S. exists, most plaintiffs in U.S. courts should be serving Japanese defendants through the Hague Convention process unless they want to risk a challenge to their service method.
Japan’s procedures for service of process (as well as evidence taking) are described in further detail at the Japanese Ministry of Foreign Affairs website. It is important to note that Hague Convention service may take months to complete, and any failure to strictly comply with Japan’s instructions may result in failure of service.
Recent Cases
Two recent federal district court decisions show that U.S. courts still do not necessarily require the Hague Convention procedure in all cases.
Continued Delay:
In re Diisocyanates Antitrust Litigation, Master Docket Misc. No. 18-1001, MDL No. 2862 (W.D. Pa. Sept. 17, 2019).
The court initially required Hague Convention service against a Japanese corporate defendant, stating that “within [the Third] Circuit, courts have indicated that where procedures are available under the Convention, service of process through the Convention is mandatory, generally.”
However, after four months passed without perfection of service, and the defendant’s U.S. subsidiary was served in the meantime, the court found that “continued delay will only serve to impede witness recollection and will unduly threaten the availability of relevant documents” and that “any further attempt of service of process through the Convention on this remaining Defendant will unduly delay the litigation,” and permitted service against the Japanese defendant through its U.S. subsidiary.
Service through a Domestic Recipient:
Peake v. Suzuki Motor, No. 0:19-cv-00382-JMC (D.S.C. Nov. 4, 2019)
A Japanese corporate defendant was sued through the South Carolina Secretary of State pursuant to a state law provision, S.C. Code Ann. § 15-9-245(a). Under this provision, service was complete upon delivery to the Secretary of State, who was then obligated to forward it to the defendant. The court held that this service was “not governed by the Hague Convention” because the service was complete upon delivery to the South Carolina Secretary of State, and the forwarding of the complaint to the defendant in Japan was not required to effectuate service.