USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken LLP
has begun, as long as the claims relating to the party arose from the same transaction or occurrence and involve common questions of law or fact. Under Rule 14, a defendant may implead an absent third party who may be liable to the defendant for the plaintiff’s claim. Finally, other interested parties may intervene in the action under Rule 24. Required Joinder Federal Rule of Civil Procedure 19 may require the joinder of other parties to the case. That rule serves to protect the interests of absent parties, and also protects the parties from being sued in multiple juris - dictions. Courts consider a number of factors in determin - ing whether an absent party should be joined in the action, and the effects of not joining the party if doing so is impossible or impractical. For example, a court considers: • whether the party’s absence would prevent com - plete relief among the existing parties; • whether the party claims an interest relating to the subject of the lawsuit and is situated in a way that the party’s absence would prevent that party from protecting that interest; and • whether failure to join the party may expose anoth - er party to multiple or inconsistent obligations. If the court is unable to join a foreign required party – for example, because it lacks jurisdiction – it might be required to dismiss the action. Jurisdiction A US court may exercise jurisdiction over a person or company located outside the relevant state only if it has personal jurisdiction over that person. State statutes known as “long-arm” statutes prescribe the circumstances where a court may exercise jurisdiction over a foreign person or company. For example, New York’s statute permits jurisdiction where: • the claim arises out of the defendant’s transaction of business in the state or a contract to supply goods or services in the state; • the defendant commits a fraud or other tort within the state;
• the defendant commits a fraud or other tort outside the state that harms someone in the state, and other requirements are met; or • the claim arises out of the defendant’s real property in the state. Federal courts may exercise personal jurisdiction when authorised by the applicable state long-arm statute and in certain other cases. In addition to satisfying statutory requirements, the plaintiff must show that exercising jurisdiction is consistent with constitutional due process. The Due Process Clause generally requires that the defendant have certain minimum contacts with the state relat - ing to the underlying controversy, and that exercising jurisdiction would not offend the traditional notions of fair play and substantial justice. More flexible stand - ards may apply to certain federal claims asserted in federal court. 4.2 Service of Proceedings out of the Jurisdiction Plaintiffs seeking to join overseas parties must comply with the service of process requirements. Federal Rule of Civil Procedure 4 (f) provides for service upon an individual outside the United States pursuant to the Hague Service Convention or another internationally agreed means of service. Where there is no such ser - vice treaty between the United States and the foreign country, Rule 4 (f) requires that service be “reasonably calculated to give notice” of the suit by one of the fol - lowing means: • as the foreign country’s law prescribes; • as the foreign authority directs in response to a let - ter rogatory; • unless prohibited by the foreign country’s law, by: (a) personal delivery; or (b) mail sent by the court clerk, return receipt; or • other means ordered by the court. If a party maintains a presence in multiple countries, it may make sense to choose the country in which to effect service based on the ease of satisfying the applicable service requirements for that country.
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