You’ve got a defendant in the United States military you need served with process. Easy, right? Not necessarily. If the defendant happens to live in the U.S. and outside the confines of a military installation, then indeed the jurisdictional and service of process nuances involved are generally similar to what you encounter with civilian defendants. However, in many cases the service member lives on a military base, and sometimes that installation is overseas. In these situations, there are procedural hurdles to executing legal process on the service member beyond the typical jurisdictional issues that may exist.
First, is there jurisdiction?
Jurisdiction regards whether or not a court may extend its power to decide cases over a particular person or thing. Exercising a court’s authority over a person is known as personal jurisdiction, and exercising that authority over a thing is called in rem jurisdiction. A court in a given state always has general jurisdiction over a person who has made his or her domicile in that state. Domicile is not the same thing as residence, as it has to do with where a person intends to make his or her home. For instance, a college student who grew up in Arizona and goes to school in New York has a domicile of Arizona. Arizona is this person’s domicile until he or she expresses an intention otherwise. A military service member who grew up and was recruited into the armed forces in California and is stationed in Fort Bragg, North Carolina has a domicile of California.
When a court has general jurisdiction over a person, that means that a plaintiff from anywhere in the world can sue that defendant in a state or federal court in that state of domicile for a particular cause-of-action. In the case of the hypothetical service member domiciled in California, an estranged wife who lives in Michigan may sue the husband for divorce in California’s state courts. She might be able to sue for divorce in other state courts, too, but at a minimum she may sue in California because courts there have general jurisdiction over the husband because of his domicile.
However, a court may be able to get personal jurisdiction over a defendant even if it doesn’t have general jurisdiction. Personally serving a defendant with process in the forum state can sometimes establish jurisdiction. This is colloquially known as “gotcha jurisdiction”. In our hypothetical example, if the estranged wife has her husband served in Michigan while he happens to be there, a Michigan court could possibly get jurisdiction over the husband and hear the suit. Be forewarned, however, that “gotcha jurisdiction” is not looked upon favorably by all courts, and the Supreme Court in Asahi was evenly split on the efficacy of this traditional basis of jurisdiction.
Additionally, state and federal courts in a given state can also get jurisdiction over a person through what is known as a long-arm statute. These are laws which extend a court’s jurisdictional reach for particular causes of action, and for this reason are specific not general. For instance, every state has a long-arm statute for motor vehicle offenses. If you’re operating an automobile on a state’s highways then you will be said to have consented to the state’s jurisdiction by availing yourself of its roadways. For child support, there is the Uniform Interstate Family Support Act (UIFSA), which in most states is employed to get long-arm jurisdiction over a mother or father who isn’t domiciled in a particular state but has children there.
Lastly, there is the “minimum contacts” basis of personal jurisdiction as first laid out in 1945 by the Supreme Court in International Shoe. If a court finds that a person has voluntarily made sufficient minimum contacts within a state then that defendant may be made to answer to a court in that forum state. Minimum contacts analysis can be quite involved, and if a particular cause-of-action entails such jurisdictional complexities it should be handled by a competent attorney.
Actually Serving Process
Assuming a court indeed has jurisdiction, a defendant still needs to be served with notice of the lawsuit before the case can proceed. If the service member lives in the U.S. but outside of the local military base, then service of process issues are generally the same as they would be for a regular civilian defendant.
However, sometimes the service member lives on the military base itself. In these situations, serving the defendant has additional complexities. First, call the installation’s legal office and find out if the base is under concurrent (i.e., federal and state) or purely federal jurisdiction. If the base only has federal jurisdiction attached, then the service member may more easily evade process as the base authorities are not required to allow process serving in a state suit. If the jurisdiction is concurrent, and the state of the installation and the state of the court that seeks process are one and the same, then the base authorities must permit service of process, subject to “reasonable restrictions.” If the state of the installation and state of the court seeking process are different, the base command can not be compelled to allow process in a state civil suit. Where cooperation is required, the base authorities will first give the service member an opportunity to meet the process server at an arranged place and time. The service member is not required to adhere to such arrangements.
International Process on Military Personnel
Where the service of process is international and involves a service member on an overseas military installation, there are even more wrinkles, and we must first look to treaty law, customary international law and Status of Forces Agreements (SOFAs) between the United States and the nation that hosts the American military base.
The 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents binds 73 member states and 69 non-member contracting states, and provides mechanisms for serving process on overseas defendants. Among these are service by a country’s designated authority (known as the Central Authority), service by international registered mail with return receipt, and personal service by local agent. Service may sometimes be accomplished through letters rogatory, and in more limited cases using service by publication.
Using a nation’s designated Central Authority (CA) for serving process can be a good option for some, but does have its drawbacks. The CA is always one-stop shopping, so to speak, and is thus handled by a single entity, usually (but not always) a governmental organ. Typically, serving process through the CA entails significant delay. Additionally, the specific SOFA may limit the extent to which a country’s CA may enter an American military installation to serve process.
Service by registered mail with return receipt can be a relatively quick and inexpensive option, however, it is also more easily evaded by defendants. Additionally, some countries like Germany, Japan, China and Russia disallow process by registered mail through local law, and have also formally taken exception to it through the Hague Convention.
Personal service by a local agent is usually faster than through the CA, but is often more expensive. Letters rogatory involve formal requests from an American court to a court in another country, and are a more traditional, pre-Hague means of executing process. However, the delays with letters rogatory can be quite long, and sometimes a foreign court’s notions of notice and due process don’t comport with our own, and may prove insufficient from the vantage of the U.S. court.
Sometimes, a U.S. court will permit service by publication, like a notice in a well-circulated armed forces journal or periodical, but this is generally done only when other attempts at service have been made and exhausted.
Service of process on any defendant is a complicated affair, and when the defendant is also a military service member these complications are multiplied. In writing this article, I hope that I’ve sufficiently painted with broad brushstrokes the outline of some of these nuances to notice and civil procedure. In no way should the foregoing be taken as legal advice. If you are wrestling with any of these jurisdictional and due process complexities, please engage the services of an attorney well-versed in questions of civil procedure.
David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc. He can be reached by email at firstname.lastname@example.org.