How is an individual who is living abroad, but is sued in a Wisconsin state court, served pursuant to Wisconsin law? There is no direct answer, as Wisconsin does not have a statute specifically referencing service of a summons and complaint on an individual in a foreign country, nor have appellate courts directly addressed this issue. But an examination of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), provides guidance that Wisconsin rules for service in the United States should apply to individuals living abroad.

In Schlunk, the court addressed the use of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). The Hague Convention applies to transmission of a judicial document for service abroad when the law of the state where the action is pending specifically refers to, and provides for, service abroad. As the Schlunk court noted,

the legal sufficiency of a formal delivery of documents must be measured against some standard. The [Hague] Convention does not prescribe a standard, so we almost necessarily must refer to the internal law of the forum state. If the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.

Id. at 700 (emphasis added).

But in Wisconsin, there is no reference in the civil service of process statutes to service abroad. See Wis. Stats. §§ 801.11, et seq. It is this absence that Schlunk addresses: in light of no reference in the Wisconsin statutes to service of process abroad, then the Hague Convention is not applied and the law of the state where the action is venued is followed to serve the summons and complaint. Wisconsin’s absence of a service abroad statute contrasts with federal law and other state laws for service abroad. Federal Rule of Civil Procedure 4(f) addresses service of process on a defendant located in a foreign country and requires that service be made in accordance with any internationally agreed-upon means reasonably calculated to give notice, such as the Hague Convention, or in accordance with a foreign country’s law. Texas service rules also specifically refers to service abroad. See, e.g., Tex. R. Civ. P. 108a(a),(c),(d), and (f).

No Wisconsin appellate case directly analyzes the issue presented here, but the Third Circuit supports this position as well. In DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3rd Cir. 1981), decided even before Schlunk, the court stated:

If a state long-arm rule does not authorize service outside the United States, a litigant in that state would have no authority to invoke the methods of serving process provided in the treaty [the Hague Convention]. We believe that the treaty merely serves as an important adjunct to state long-arm rules and that it specifies a valid method of effecting service only if the state long-arm rule authorizes service abroad.

Id. at 289 (emphasis added).

As such, when serving an individual abroad a summons and complaint in a case venued in a state trial court, the Wisconsin rules for service of process in the United States should apply.

This legal update is intended for general information purposes for the community and highlights changes and developments in the legal area. This publication does not constitute legal advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.