Can I Sue a Foreign Defendant?

The world is getting smaller. Not literally, of course—the earth’s surface area remains about 197 million square miles. However, our interactions increasingly involve people or companies outside of the United States.

What happens if one of these foreign actors harms you through a careless or wrongful act?

Understanding jurisdiction

Jurisdiction refers to a court’s power to hear a case and make a judgment. In order to sue a foreign defendant, the court must have jurisdiction over the defendant. There are two types of jurisdiction a court must have: personal jurisdiction and subject matter jurisdiction.

Personal jurisdiction

Personal jurisdiction refers to the court’s authority over the parties involved in a lawsuit. For a court to have personal jurisdiction over a foreign defendant, two main conditions must be met.

• Minimum contacts: The defendant must have established sufficient contacts within the state in which the court is located. These contacts can include conducting business, owning property, or committing a tortious act within the state. 
• Reasonableness: It must be reasonable to require the defendant to defend the lawsuit in a particular state. When determining reasonableness, several factors such as the defendant's burden, the forum state's interest in adjudicating the dispute, and the plaintiff's interest in obtaining effective relief are considered.

Subject matter jurisdiction

Subject matter jurisdiction refers to a court’s authority to hear a specific type of case. For example, federal courts in the United States have jurisdiction over cases involving federal laws, interstate disputes, and matters exceeding certain monetary thresholds. When it comes to international personal injury lawsuits, federal courts can also hear these cases under certain conditions:

• Diversity jurisdiction: If the parties are citizens of different countries and the amount in controversy exceeds $75,000, federal courts may have jurisdiction.
• Federal question jurisdiction: If your case involves a question of federal law, such as a claim under an international treaty or a federal statute, federal courts may have jurisdiction.
• Alien Tort Statute (ATS): Federal courts can hear cases brought by non-U.S. citizens for torts committed in violation of international law under the Alien Tort Statute.
• Foreign Sovereign Immunities Act (FSIA): If the defendant is a foreign state or a foreign state-owned entity, the Foreign Sovereign Immunities Act provides a basis for federal courts to hear the case under specific exceptions to sovereign immunity.

Establishing minimum contacts

The concept of “minimum contacts” is so crucial to determining jurisdiction that it deserves a closer look. 

When courts evaluate whether a defendant has sufficient minimum contacts, they consider several factors:

• Purposeful availment: Did the defendant purposefully avail themselves of the privilege of conducting activities within the forum state?
• Relatedness: Are the plaintiff's claims related to the defendant's contacts within the forum state?
• Reasonableness: Would exercising jurisdiction be reasonable and fair?

Let’s look at a hypothetical to help illustrate these factors:

Service of process abroad

Serving a defendant within the United States involves adhering to numerous statutes. Unfortunately, serving legal documents to a foreign defendant is even more challenging.

The Hague Service Convention, an international treaty, facilitates the service of process between member countries. Under this convention, you can send legal documents to a designated central authority in the foreign country, which then serves the documents according to local laws.

If the defendant's country is not a member of the Hague Service Convention, you may need to rely on other methods, such as letters rogatory, which are formal requests from the court in your country to the court in the foreign country.

Forum non conveniens

Even if a court has jurisdiction, it may decline to hear the case based on the doctrine of forum non conveniens. This doctrine allows courts to dismiss cases if another forum is significantly more convenient for the parties and witnesses. Factors courts commonly consider include:

• The location of evidence and witnesses
• The burden on the defendant
• The interests of the forum state
• The availability of an alternative forum

In some cases, courts may condition dismissal on the defendant's agreement to submit to the jurisdiction of the alternative forum.

Additional practical considerations when suing a foreign defendant

Suing a foreign defendant involves several practical considerations. Here are some more things to consider:

• Legal representation: Not all attorneys have experience with international litigation. When choosing an attorney, be sure to ask about their experience in suing foreign defendants. It's important to find someone who understands the complexities of cross-border legal issues.
• Costs and fees: International litigation can be expensive. Before choosing to sue a foreign defendant, consider the potential costs, including filing fees, attorney fees, translation services, services of process fees, and travel expenses. Some cases allow for the recovery of legal costs, but this varies widely.
• Enforcing judgments: Winning a judgment against a foreign defendant is only part of the battle. Enforcing that judgment in the defendant's country can be challenging. The Hague Convention on the Recognition and Enforcement of Foreign Judgments can assist, but enforcement depends on the local laws and the defendant's assets.

It’s certainly possible to sue a foreign defendant, but it can be complicated. If you find yourself in a situation where you need to sue a foreign defendant, consulting with an attorney experienced in international law is essential. They can provide guidance tailored to your specific circumstances and help you navigate the intricacies of cross-border litigation.