The Peace Palace, centerpiece of The Hague.

Let’s dig a little deeper into what that query truly means, because some variation of it pops into my inbox at least once or twice a month, from litigators in both the U.S. and Canada.  There’s a lot to unpack in those eight words, and a few things need to be clarified to get to the heart of the question, but the quick answer is… yes.

So what needs to be clarified?  Well…

  • What do you mean by “the Hague”?  Usually, the person posing the question means the Hague Convention– or more accurately, the 1965 Hague Service Convention.  It’s critical to name the Convention precisely, because rather than “the” Hague Convention, there are about three dozen of them.  Ninety percent of the questions I field like this refer to serving, but there are other important treaties, all signed in the Hague, that pertain to litigation issues.
  • What do you mean by “go through”?  We don’t send Hague Service Requests to the capital city of the Netherlands.  If the defendant is actually in the Netherlands, then we could, although I don’t recommend it (sit tight for why that is).  Instead, we send requests to the appropriate Central Authority wherever the defendant is to be served (that is, in his/her/its particular jurisdiction).
  • Taking that idea a bit further, if by “go through” you mean “go ‘through’ the Central Authority” it depends.  In places like Germany, England, Mexico, and Korea… yes.  Article 5 is your only avenue to service, so your request must be directed to the appropriate Central Authority.  But in countries like Canada, Ireland, and the Netherlands, we can go around official channels and directly engage a “competent person of the State of destination” to effect service.  (In the upper right hand corner of this page you’ll find a search bar– type just about any country and you can determine pretty quickly where you stand.)

Hopefully that clears things up in terms of this common question.  My stock answer is this:

Yes, you have to comply with the Hague Service Convention– but depending on where you need to serve, you may not have to ask the Central Authority to effect service for you.

Jason Sudeikis and Olivia Wilde in happier days. Daniel Benavides via Wikimedia Commons.

Here’s a Hollywood story that’s relevant to Hague Service issues (I promise)…

Late last month, the story broke that Jason Sudeikis had a custody action served on Olivia Wilde while she was on stage, at a public event, announcing her new movie.  In front of a room full of fans and press and industry bigwigs, that’s got to be a shocker, and more than a bit embarrassing.  The Twitterati naturally went berzerk, throwing as much vitriol at the actor as they could muster.

Sudeikis’ emphatic statement thereafter made clear that he hadn’t dictated the methodology, and that he found the process server’s approach to the situation highly inappropriate.

Now, I rarely comment about celebrity news.  Real news is tough enough to keep up with, and anybody who pays more attention to celebrity gossip than to SARS-CoV-2 or Ukraine needs some re-prioritization.  But this one is relevant to my practice.  And I have to hope that it was merely the culmination of a set of unfortunate circumstances (critical to remember: circumstances involving two young children).

After all, Sudeikis doesn’t just play Ted Lasso– he is Ted Lasso.  This fellow is, by all accounts, a tremendously nice guy.  His show has provided a much-needed feel-good experience in a tumultuous time (ie: SARS-CoV-2 and Ukraine).

Here in Kansas City (his hometown), Sudeikis is revered, not only for his portrayal of the sweestest, kindest, and most loveable fellow to ever grace the small screen, but also for his all-in efforts with Big Slick.  That’s the charity he and a couple of other KC comics (Rob Riggle and Paul Rudd in particular) grew from a small celebrity poker tournament several years ago to an annual weekend-long event that raises millions for our local kids’ hospital, Children’s Mercy.  It’s a thing, I tell you.  In this town, we love those guys, so it’s tough to imagine any of them being a litigation jerk.

So back the service of process issue…

The process server the agency sent out may have had no other option.  I’m speculating here, to be sure, but celebrities are frequently surrounded by a phalanx of security people and their homes are highly secured.  It’s tough to get close enough to them in a private setting,* so there really may have been no other way to put the documents into her personal orbit, and he couldn’t have staked out her house to tag her on her way to the supermarket (well, not without running up a huge bill).  Heck, even non-celebrities can be tough to reach– just ask the professional process servers who work for me around the world.

They have to get creative, and I sense that’s what this guy had to do.  It wasn’t Sudeikis’ fault, and it probably wasn’t a matter of Wilde being evasive.  There’s no fault involved.  It’s just circumstance, borne out of a custody dispute.  But fortunately, it was done in a way that their two kids didn’t have to watch.  That’s the positive takeaway from this, and it begs a story.

A few years ago, I was hired to have a U.S. divorce action served on a wife in Germany.  Pretty run of the mill stuff, with an accurate address, all papers in order, no real controversy at work.  But before I even had proof back from the German authorities, my client (the husband’s counsel) called to ask me to yell at the process server.  It seems the fellow who served the papers knocked on the door, and it was answered by the litigants’ 16 year-old son.

“Hey, is your mom here?”

Nein, said the kid.

“Well, would you make sure she gets these?  They’re divorce papers from the USA.”

The son had zero idea that his folks were divorcing.

Now, the fact that they’d lived on different continents for years would tell even the youngest kid that Mom & Dad aren’t exactly chummy.  But I was still mortified.  And yet, it was something entirely beyond my control.

Why?  Because in Germany and dozens of other countries worldwide, service isn’t executed by private agents like the one who placed that envelope at Olivia Wilde’s feet.  It’s effected by judicial officials, most of whom are caring and professional.  But sometimes, they just act without contemplating how their methods affect real people.  And there’s not a thing we can do about it.

An unfortunate circumstance, but true.  My client related to the husband/father that it was a court official– and not our agent– who fumbled the compassion ball so badly and we got some grace out of the deal.  I’d like to think that, until we know more about what precipitated the events, even the process server in Sudeikis v. Wilde should have some grace too.

Coach Lasso would agree, I’m pretty sure.

 


* Author’s note: we have here a case of a journalist not grasping nuanced of terms of art like “trespass”.  From the Los Angeles Times article:

“In a recent interview with People magazine, a family law attorney based in Southern California explained that process servers are instructed to hand deliver legal and court documents directly to the recipient by any means necessary. The papers must be delivered in a public setting (meaning the process server is not permitted to trespass on the recipient’s private property to hand off the docs).”

Well, yes and no.  They don’t have to be delivered in a public setting– unless a defendant’s front porch is considered a public setting (the word “curtilage” comes to mind from Crim Pro), but it’s also not considered trespassing to saunter up the sidewalk and onto that porch to serve.  Climbing a security fence or ramming through a locked gate?  Different story.

 

 

What did you just say, Mister Data?

Very regularly, clients will email me a batch of documents to have served on an offshore defendant and my staff* and I will get to work putting the paperwork together.  Occasionally, a document will jump off the screen at me and make me scratch my head in wonder.

One such itch recently entailed a summons issued by a state court clerk, titled “SUMMONS PURSUANT TO ARTICLE 10 OF THE HAGUE CONVENTION”, for service on a defendant in Korea.

Um, lots to unpack there.

For starters, there’s no such thing as “THE” Hague Convention.  There are about forty of them, so unless you’re more specific, you aren’t really citing anything.

Second, a summons isn’t issued “pursuant” to the Convention.  It’s served pursuant to the Convention, but that’s it.

Third, Korea objects to Article 10, so referencing it at all in the documents to be served threatens to derail the whole project.  The folks in Seoul?  They read this stuff.  They’re smart people– after all, they gave us pretty cool smartphones and this K-Pop masterpiece.**  Oh, and don’t get me started on an amazing thing called Korean barbecue.

But all I can do when I see that sort of thing in a summons or pleading is ask, “who wrote that?”  And then I pray that it wasn’t my client because… wow, awkward.

Nine times out of ten, it’s the clerk’s drafting or it’s only my client’s drafting because “the clerk told me to do it that way.”

Ahem, no.  The fact that a defendant is abroad has precisely NOTHING to do with the way the documents are drafted.  Zip.  Zilch.  Nada.  ZEE-RO.  I can’t stress this enough… NOTHING.

Lex fori dictates what gets served– and I know of no procedural rule in the U.S. that derives its authority from a treaty.  While lex fori dictates what gets served, the Convention and foreign law dictate how it gets served.

One of my best practice tips:

Write up the summons as if the defendant is in Philly, Boston, or Baltimore.

We’ll take it from there.

 


* Take the word “staff” with a grain of salt.  My wife, Peggy, is my office manager, and things run a hell of a lot better around here now that she’s taken on the things that I JUST CAN’T EVEN.  Calling her “staff” is, well, silly.  I just can’t call her the boss lest OCDC rain fire down on my head license.

** Here’s a mind-blower: Gagnam Style came out ten years ago this summer.

(See Part One here and Part Two here. Part Three is linked below.)

An axiom of life was posed to me one day toward the end of my 2L year:

Lawyers are the most helpless race of people on the planet.

This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience.  “Seriously,” he said.  “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”

After I started practicing, I concluded that he was right– at least, to a point.  But it’s not that lawyers are incapable of dealing with picayune matters.  We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice.  Part of the difficulty in dealing with the seemingly small stuff is this: we have such voluminous reading to do that we forget one of law school’s Cardinal Rules:  keep reading.

A big issue that comes up now and again– the incorrect conclusion that Article 5 is the only avenue to Hague Service.  That was the crux of Keep Reading, Part Three last month.  Those unfamiliar with the Hague Service Convention (HSC) often labor under the mistaken belief that the Convention requires the involvement of the government in the foreign country where the defendant is to be served.  In many places, that’s true– in a fair chunk of western Europe and Latin America, as well as almost all of the Far East.  But if you stop reading at Article 5, you don’t get to the alternative means of service enshrined in Article 10.  And that’s bad if your defendant is in the Netherlands, Belgium, and much of the English-speaking world.  It’s even worse if your defendant is in Hong Kong, where the alternative is sometimes the only viable way to go.

But the validity of Article 10 methods relies on the declarations made by the destination country.  That so many lawyers never get that far is indicative of how little understood treaties really are.  At their core, they’re very simple, with an important caveat.  Treaties are contracts.  That’s all.  They’re binding agreements between two or more nation-states.  Foster v. Neilson, 27 U.S. 253, 314 (1829).

I did not have this guy for Contracts.

Think of all the elements drilled into your head in 1L Contracts class:  meeting of the minds, consideration, adhesion.*  Member states are often referred to in treaty texts as “High Contracting Parties.”  Pretty straightforward concept.  But there’s a twist: where  more than two countries sign on to the agreement, reservations and declarations create different relationships between certain states-party.**  That is, when China signs a treaty with the United States and Canada, it can object to certain articles of the treaty, so while those articles are in force between the U.S. and Canada, they don’t even exist as the relationship looks across the Pacific.  Best example of that in the litigation world: HSC Article 10 (see above).

Point is, just reading the text of a treaty isn’t enough– you have to look to the reservations/declarations made by each member state.  You absolutely must…

Keep reading.


* Seriously.  Contracts of adhesion exist in international law.  After all, how many countries have signed treaties with artillery tubes pointed at their capital?

** I love that term.  State-party and its plural form, states-party.  Translated for civilians: countries that are party to an agreement.


A hat tip to my International Law professor at UMKC.  Fred Green is a retired Army JAG officer (not the fellow I quote above) whose last billet was as counsel to the Joint Chiefs of Staff, and who authored the first draft of the NATO/SHAPE Status of Forces Agreement when DeGaulle sent the Allies packing off to Belgium.  I figured that a guy who had actually written a treaty knew what he was talking about, so when he lectured about reservations and declarations, it stuck.  As it turns out, that treaty governed my family’s presence in Belgium in the late 1970s, so I naturally bought the good Colonel a beer to say thanks for his fine drafting (he’s a UMKC Law alumnus, too, for the record).  That beer (I use the singular to protect the innocent) became a recurring event over the ensuing years, I’m happy to say.  We’ve both lost count, but I think the next round is his.

Cherry. Nothing else comes close to such awesomeness.  Maybe Lime in a pinch.

Back in law school, I was always befuddled by those gunner types who insisted that no legal argument could be made without a case citation. The professor would ask a question and these guys (I use that in the non-gender-exclusive sense) would go thumbing through their casebooks and brief notes to find just the right response, because they’d swallowed too much law review Kool-Aid.

Meanwhile, the nuts & bolts fans among us would pull up a browser page and have an answer from Google far more quickly.

To be sure, I’d never suggest citing Google (or Wikipedia) as an authority, but that’s not the point.  The point is that case law doesn’t have to be the initial step in the research journey.  Every once in a while, I’ll field a question from a potential client (ie: a fellow attorney) and it will have a clear-cut answer.

“I have to serve a defendant in Germany.  Do I have to go through the Hague?”

Yes, I say, setting aside my grumpy reaction to the preposition “through” and the very murky reference to the Service Convention.*

“That’s what I was thinking, but the judge says I have to have a private process server execute service– can you refer me to someone over there?”

Well, the judge clearly doesn’t understand the Hague Service Convention– or the German legal system, for that matter–so send him** a link to my blog How to Serve Process in Germany and he can take judicial notice.

“But I have to have a case that says Germany doesn’t have private process servers.”

No, you don’t.  You need to show the judge why he’s wrong, but that showing can come from somewhere other than a court case.  And nine times out of ten, that can come from the same place you’ll find restaurant recommendations in K-Town (forget the search and just go to Jongro— it’s spectacular) or a GIF of an incredulous Captain Picard.

Start with Google.  Or if you’re not a fan of Larry & Sergey, Bing it.  Try Yahoo.  Heck, even Webcrawler is still alive for those of us who came of age before the dawn of the internet.  But ask a search engine “do they have private process servers in Germany?”  Scroll past the ads and you’ll see that, no, they don’t.

Point is, case law is not the mother lode for legal research– contrary to what law review acolytes insist.  These are the same people who actually argue over whether proper citation requires you to italicize a comma, so remember:

  1. You don’t need a case citation to tell you what the Constitution, or a treaty, or a statute says in plain English.
  2. You don’t need a case citation to determine what foreign law says– in fact, in civil law countries, case law takes a back seat to scholarly articles (they really drink the law review Kool-Aid, but you get the point).
  3. You don’t need a case citation to tell you how a procedure is laid out.
  4. You really can’t use Lexis or Westlaw to properly identify (or locate) your defendant.
  5. And your regular web search may just lead to precisely the case you need.

GTS, y’all.  Srsly.***


* The Grumpy Gus inside my head cringes every time somebody uses the preposition “through”, especially as it pertains that beautiful Dutch city.  We don’t send service requests “through the Hague.”  We send them to the specific country where the defendant is to be served.  We also don’t “go through the Hague Convention.”   We request service pursuant to the Hague Service Convention.  Sorry to be so pedantic, but the wrong terminology really screws things up here.

** It’s always a him in these instances.  Seriously.  Judges who lack the Y-chromosome are far less recalcitrant.

*** GTS:  Google that stuff.


Author’s Note:  Had I gone to law school straight out of college, I wouldn’t have had Google– Larry and Sergey were still undergrads and they hadn’t even started filling out their apps for Stanford.  Instead, I waited until the ripe old age of 37, by which time those two guys had become billionaires and I had a resource that wasn’t a book that outweighed a bowling ball.

The Peace Palace, Den Haag.

(See Part One here and Part Two here.  Both discuss parts of FRCP 4, while this one hits on the Hague Service Convention itself.)

One day toward the end of my 2L year, this wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience in military and civilian courts:

Lawyers are the most helpless race of people on the planet.

“Seriously,” he said.  “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”

After I started practicing, I concluded that he was right– at least, to a point.  But it’s not that lawyers are incapable of dealing with picayune matters.  We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice.  Part of the difficulty in dealing with the seemingly small stuff is this: we have so much voluminous reading to do that we forget one of the Cardinal Rules of law school:  keep reading.

A big issue that comes up now and again– “I tried to serve this thing personally, and the judge told me I had to go through the Hague.”

Well, let’s break that down a bit.  You may have already “gone through the Hague”– if he meant that you had to comply with the Hague Service Convention.  That’s a non sequitur thanks to Justice O’Connor.  However, if he meant that you had to file a request with the foreign country’s government, the judge may not know what he’s talking about and should keep reading beyond Article 5.*

Article 5 is the primary part of the treaty, setting out the main avenue to service in other member states.  But Article 10 goes a bit further to lay out alternatives…

Provided the State of destination does not object, the present Convention shall not interfere with –

a)  the freedom to send judicial documents, by postal channels, directly to persons abroad,
b)  the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
c)  the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Put another way, if the country you’re serving in doesn’t have a problem with you mailing the documents or just hiring someone in that country who is qualified to serve over there,** go right ahead.  This treaty isn’t going to get in the way.  It doesn’t magically validate a method that isn’t valid to begin with, but it opens alternatives to Article 5 and foreign countries’ Central Authorities.

Keep reading.


* A not-frequent, but also not-uncommon, misconception is that Article 5 requests are actually sent to the Netherlands, and are then forwarded to the country where the defendant is located.  This is why the Grumpy Gus inside my head cringes every time somebody uses the preposition “through” in this context.  We don’t go “through the Hague Convention.”  We request service pursuant to the Hague Service Convention (that’s the accurate colloquial name for it).  Sorry to be pedantic, but the wrong terminology really screws things up here.

** A coming post in the “Keep Reading” series will describe how you can’t just read a treaty and call it good.  Each state-party can make declarations (or reservations) that change how the treaty applies to them.  If they object to a particular article, it’s off the table.  But you have to keep reading in order to ascertain what’s left.

It’s official– yesterday we signed on to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, colloquially known as the Hague Judgments Convention.*  The point of the Convention: essentially, to do for judgments abroad what the Full Faith & Credit Clause does for judgments as they cross state lines.  To dramatically oversimplify, once in force, the Judgments Convention would give a final U.S. judgment effect in Israel or Costa Rica, like the FFCC gives a final Missouri judgment effect in New York.  Of course, there are nuances and exceptions and a mechanism to make things happen, but that’s the nutshell version.

Now ensues a battle on Capitol Hill over its ratification by the President.  This shouldn’t be too controversial, as U.S. courts are usually quite willing to recognize and enforce foreign** judgments if due process has been assured.  As more countries sign on and the treaty is implemented, foreign courts will be more likely to recognize and enforce ours… a massive gain for American litigants.  This should be one treaty that isn’t doomed to languish because the folks on the Hill can’t get something done, but I won’t hold my breath in this climate.

Here’s hoping, though…


* A nod to my colleague and fellow blogger, Ted Folkman, who offers that we should refer to Hague Conventions differently.  He argues, rightly in my estimation, that they should be called “HCCH Conventions” owing to their administration by the Hague Conference on Private International Law, HCCH for (bilingual) short.  Under Ted’s rubrik, this agreement is really the 2019 HCCH Judgments Convention, the Hague Service Convention should be the 1965 HCCH Service Convention, etc.  While I agree wholeheartedly, a certain algorithm in California doesn’t see the nuance, so I stick with the old way.

** Foreign in the “you need a passport to go there” sense– not the “across State Line Road” sense.


A grammatical note for foreign readers… while conventional rules dictate the use of the plural when referring to the U.S., we use the singular.  Instead of “the United States sign the Hague Judgments Convention,” we say “signs” the treaty.  Our national motto is E Pluribus Unum… From Many, One.

An axiom of life was posed to me one day toward the end of my 2L year:

Lawyers are the most helpless race of people on the planet.

This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience in military and civilian courts.  “Seriously,” he said.  “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”

After I started practicing, I concluded that he was right– at least, to a point.  But it’s not that lawyers are incapable of dealing with picayune matters.  We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice.  Part of the difficulty in dealing with the seemingly small stuff is this: we have so much voluminous reading to do that we forget one of the Cardinal Rules of law school:  keep reading.

In the first post of this series, I bemoaned the tendency of lawyers and judges to see the 90-day service deadline in Rule 4(m) and just stop reading.  They don’t get to the last sentence of 4(m), which specifically abrogates the deadline for service on overseas defendants.  Here, a less frequent issue is the title of Rule 4(f), which I’ve lived in for going on nine years.

(f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY.

If the defendant is an entity, counsel can’t just stop reading there.  He absolutely has to continue on to 4(h)(2), which applies 4(f) to entities, for the most part.

(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).

That last part (“except personal delivery”) is the problem.  It occasionally pops up when defense counsel tries to argue that my English solicitor can’t send his favorite process server to drop my summons & complaint on a desk at a defendant’s registered office.  Likewise the rest of the UK and its territories, Ireland, Canada, Hong Kong

“No,” defense counsel says, “you can’t do that.  Rule 4(h)(2) precludes personal service.”

Sorry, my mistaken colleague.  That’s not what 4(h)(2) precludes.  Rule 4(h)(2) precludes the use of 4(f)(2)(C)(i) to justify personal service, and we don’t get there via that particular rule.  We get there via 4(f)(1) in conjunction with Article 5 of the Hague Service Convention, or via 4(f)(2)(A) in tandem with Article 10(b).  Those portions of 4(f) are clearly not taken off the table by 4(h)(2).

(f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(Emphasis mine.)  Personal service is completely valid if it’s undertaken by competent persons in the foreign country– either at the direction of a Hague Central Authority or simply pursuant to local law (if the destination country doesn’t object to 10(b), that is).

Keep reading.

Zereshk, via Wikimedia Commons.

An axiom of life was posed to me one day toward the end of my 2L year:

Lawyers are the most helpless race of people on the planet.

This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience in military and civilian courts.  “Seriously,” he said.  “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”

After I started practicing, I concluded that he was right– at least, to a point.  But it’s not that lawyers are incapable of dealing with picayune matters.  We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice.  Part of the difficulty in dealing with the seemingly small stuff is this: we have so much voluminous reading to do that we forget one of the Cardinal Rules of law school:  keep reading.

One of the issues that is a constant in my world is the deadline set forth in Fed. R. Civ. P. 4(m)., seemingly a buzzsaw when plaintiffs’ counsel has to serve pursuant to the Hague Service Convention– especially when the defendant is in a place like Mexico or India.  Just last week, I told a client that the Hague Central Authority in China might take 18 months or more to get back to us, and he said the judge’s head was going to explode at that.  She wanted everybody served in 90 days or she was going to kick the whole case out of court.

Well, I said, her head’s just going to have to explode, because she doesn’t have the authority to do that.*  Let’s take a look at the rule.

Time Limit for Service.
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.

Okay, I see where she’s getting the deadline.  But it never ceases to amaze me how many lawyers– including, to my dismay, the ones who wear robes and bang little wooden hammers on their desks for a living– simply stop reading there, and completely miss the next sentence.

But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Hey, that seems like a good thing, right?  What better cause can there be but a procedure mandated by a treaty?

Ahem, good cause doesn’t matter.  There’s nothing to extend if service happens abroad, so don’t ask.  (Keep. Reading.)

Most frustrating to me is that they don’t get to the last sentence of 4(m), which solves everybody’s problem (okay, maybe not the person in the robe with the little wooden hammer– but she has to relent a bit).

This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

Emphasis mine, of course.  (When we serve abroad, we’re almost always using 4(f).)

If counsel or the judge simply keeps reading, the safe harbor is obvious.  You really do have a friend in 4(m), but that friend only shows up in the full text of the rule.

Keep reading.

 


* Seminal:  Nylok Corp. v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005).

L. Leonard Ruben District Court Building, Silver Spring, Md.  Farragutful, via Wikimedia Commons.

A while back, I wrote that removing the self-expiration language in a standard bankruptcy summons is imperative when serving overseas defendants in adversary proceedings.  I’ve used that post on several occasions to advise litigators in various state venues to do likewise, where the documents contain text like “This summons is effective for service only if served within 30 days after the date it  is issued.”

The same basic logic applies:

If the summons expires by its own terms before we can reasonably expect a foreign authority to get the thing served, we’re wasting everybody’s time– especially the clerk’s office.

On the other hand, if the clerk’s office will simply edit the summons to remove the problematic language, the procedural machine runs smoothly, purrs like a kitten, spins like a top.  Sure, it does so very slowly in some places around the globe, but that’s exactly the point to the edit.

Lately, though, we’ve gotten a fair amount of pushback from state court clerks who either (1) need us to give them something to hang their hats on– a legal basis for the modification– or (2) just don’t wanna– and flatly refuse to modify the text.  This post is for those clerks. For the record, I happily admit the following:

  • Your local rules are carefully drafted to ensure that the docket keeps moving.*
  • You have an obligation to follow those rules.
  • And of course, 30 days means 30 days.

Look, I get it.

But do you know who doesn’t get it– and more importantly, who doesn’t care?  Foreign authorities. 

Particularly those in China, or India, or Mexico.  Heck, even officials in Canada or England or Australia (you know– countries that actually still like us) are certain to giggle a bit when an American lawyer tells them “my local court rules require you to have this summons served within 30 days** and return proof within 30 days after that.”

That is, they’ll giggle a bit if it doesn’t so thoroughly rankle them that they dump the American lawyer’s entire request packet in a shredder.

Imagine if a U.S. court clerk received a demand from the Amsgericht in Düsseldorf demanding that its request for assistance be executed within a certain time constraint.  The U.S. court clerk would laugh and laugh and laugh.  Silly Germans.

Silly, silly Germans.

Honestly, if the roles were indeed reversed like that, you would be howling mad.  How dare a foreigner tell us how to do things in our own jurisdiction?  How dare they dictate terms?***

Now, I realize that requests for service don’t frequently land on the desks of U.S. court clerks– service is the responsibility of the plaintiff in common law jurisdictions– but in civil law systems, it’s a function of the court.  Even in other countries that share our common law heritage, requests for service under Article 5 of the Hague Service Convention are handled by government officials.  So if the Clerk of the 16th Circuit Court for Jackson County, Missouri barks orders at the Amsgericht clerk in Düsseldorf, that German is going to be justifiably mad.

So what is the legal basis for the fix?  Well, first, we look to why the expiration is there in the first place.

Is the language prescribed by statute or rule?  No?  Then fix it.

If yes, does the statute or rule provide a safety valve?  (I’m looking at you, Illinois… the prescribed language need only be substantially adopted in the summons.  And in Maryland, the rule that requires the expiration also says the summons can be renewed upon written request… so just renew it preemptively.)  Or is there some presumption in the statutory language that is overridden by the Hague Service Convention?  If so, there’s no problem fixing it.

Ultimately, if the expiration is just common practice, intended to motivate plaintiff’s counsel to act accordingly, then there’s nothing to overcome.


* Unless you’re in Missouri, where service rules were seemingly drafted by a committee of four year-olds very much in need of a cookie and a nap.

** For the record, in Missouri’s defense, our summonses don’t need such editing.  That said, some of our clerks think they can dictate who is authorized to serve abroad.  (Hint: they can’t.)

*** I appeared as an expert witness not long ago, regarding my involvement in a failed service request to China (local officials’ failure– not ours).  On cross-examination I was asked by the Chinese defendant’s counsel why I didn’t just tell the Central Authority in Beijing that it screwed up, and they should do their jobs better.  My response to the attorney, who was actually native Chinese, was “wow, and I thought you might have a better understanding of the Chinese government than the rest of us here.”