Like all right-thinking people, I hate the Hague.
Not the city, which is probably a nice place with a rich tradition of tulips and sausages, but the convention on international service of process which is a nightmare for those of us used to the stereotypically fast and loose system that reigns on this side of the pond.
The rules are labyrinthine, the requirements that can be figured out are onerous, and it frequently takes months for the central authority to determine that you've done something wrong and need to start the whole process over again. If, however, you somehow manage to get the central authority's stamp of approval, you've effectively insulated yourself from later attacks on the method of service.
That was the lesson of Judge Williams recent opinion in Tigo Energy Inc. v. SMA Solar Tech. Am. LLS, C.A. No. 22-915-GBW (D. Del. Oct. 23, 2023) (Mem. Op.). The plaintiff there had sued a german company and its american subsidiary for patent infringement. Service on the U.S. entity was easy enough, but the German parent refused to waive service, forcing the Plaintiff to go through the Hague. After a rejection, the central authority accepted the application and effected service on the German parent. The German parent then moved to dismiss for ineffective service, alleging that the documents failed to comply with the Hague convention, and that the German central authority accidentally served an unrelated company.
Judge Williams found these arguments less than compelling, holding that the central authority's acceptance allowed the Court to assume all of the requirements of the Hague were met, especially when there was no dispute as to actual notice:
The Court agrees that a lack of objection from the German Central Authority is evidence that the documents did in fact comply with the Hague Convention. Had the German Central Authority found that the documents failed to meet requirements of the Convention, they would have rejected Tigo's application, as they did with Tigo's first application . . . This Court finds, as it has before, that minus any objection from the German Central Authority, the Court will not hold that a partial translation or a missing summary page renders service ineffective under the Hague Convention.
Id. at 9-10 (cleaned up).
Moreover, the Court found that the mis-delivery was of no moment, given that any error was made by the central authority, rather than plaintiffs:
SMA AG's allegation that service was made to an unrelated company is therefore not evidence that Tigo failed to provide SMA AG with proper service, but rather that the German Central Authority did not comply with its service requirements. "[W]here the plaintiff made a good faith attempt to comply with the Convention" by, for instance, relying on the Central Authority, the Court will not dismiss the claim on the basis of a technical defect unless defendant can show that it lacked actual notice. Here, despite any of the alleged deficiencies that SMA AG raised about the served documents, SMA AG's Motion to Dismiss ultimately fails because SMA AG cannot claim that it lacked actual notice.
Id. at 10-11 (cleaned up).
So there you go, something nice about the Hague (the convention).
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