The time limit governing service of process for federal civil actions is found in Rule 4(m).

The gist, get the summons served in 90 days or you’re out, counsel.

But the 90-day deadline only applies if the defendant is in the United States.  Outside the U.S., you’re under a reasonable diligence standard, and that usually means that you must start the ball rolling within 90 days.  You’re not dilatory.  You don’t sandbag.  Your feet aren’t dragging like a sailor on his third day of liberty in Singap… okay, I belabor the point.

This week’s amendments don’t do a whole lot to Rule 4, but the change does clarify a very nit-picky problem.  The old 4(m):

This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

The nit-picky problem: 4(f) deals with individuals, and 4(j)(1) with foreign states.*  The old rule seemingly omitted service on entity defendants, so the committee notes say this:

Rule 4(m) is amended to correct a possible ambiguity that appears to have generated some confusion in practice.  Service in a foreign country often is accomplished by means that require more than the time set by Rule 4(m).  This problem is recognized by the two clear exceptions for service on an individual in a foreign country under Rule 4(f) and for service on a foreign state under Rule 4(j)(1).  The potential ambiguity arises from the lack of any explicit reference to service on a corporation, partnership, or other unincorporated association.  Rule 4(h)(2) provides for service on such defendants at a place outside any judicial district of the United States “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).”  Invoking service “in the manner prescribed by Rule 4(f)” could easily be read to mean that service under Rule 4(h)(2) is also service “under” Rule 4(f).  That interpretation is in keeping with the purpose to recognize the delays that often occur in effecting service in a foreign country.  But it also is possible to read the words for what they seem to say—service is under Rule 4(h)(2), albeit in a manner borrowed from almost all, but not quite all, of Rule 4(f).

Really, any reasonable reading of 4(h)(2) ought to eliminate the confusion:

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(Emphasis mine.)  Rather a tempest in a teacup, because it’s awfully implausible to argue that “oh, no, your honor… if the drafters had meant for corporations to be included, they’d have written the rule more artfully.”  Oh, how we lawyers love to manipulate the hell out of language.

But the revision negates the question entirely.

Mischief managed.

 


*Regarding 4(j)(1), a shameless plug: pay particular attention to the Foreign Sovereign Immunities Act, the subject of an excellent article by my colleagues Victoria Valentine, Shelli Barish Feinberg, and Simone Fabiili in the Michigan State International Law Review.  I was honored to contribute a bit to the cause.  More importantly, Victoria was just elected to the bench, so congratulations are in order.  Oakland County was the real winner in that race.