[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.  The obvious irony here is that I’m using two images of the great actor Sean Bean which, although developed in satire, are blatant rip-offs.  My hope is that I’ll be forgiven, given my ardent and emphatic recommendation that my readers go back and watch The Lord of the Rings and Game of Thrones— at least Season One.  If that’s unacceptable, I will readily cease & desist.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a a copyright lawyer– I don’t do immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle copyrights exclusively, no visa applications ever.  What if some random website hosted somewhere overseas decides that “all your base are belong to us,” rips off your client’s content, and publishes it as their own?  Your client justifiably seeks proper attribution and compensation, but the infringing party refuses to cooperate. So you sue.

But don’t you think you might have to serve the publisher?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, if you’re going to serve in a foreign country, odds are quite good that the Hague Service Convention applies, so you’ve got to figure out what options are available to you.

Next, you may have to set up a translation of the documents.  Never mind that the stolen copy is in English– so the bad guys must understand English– foreign translation requirements aren’t focused on the defendant’s comprehension.  They’re focused on the foreign officials handling the documents.

Then ask the appropriate Central Authority for help.  And pray that you’ve filled out your USM-94 correctly.  [That’s a big one.  Very important, the USM-94.]

If you don’t get them served…

This is Ned Stark.

You’ll have a tough time getting the copy attributed to your client without that defendant.


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a patent lawyer– I don’t do immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle patents exclusively, no visa applications ever.  What if some offshore bad guy (let’s call him “OBG” for short) decides that “all your base are belong to us” and starts making your client’s widgets with his own name on them?  Your client, who sacrificed an incredible amount of blood, sweat, and tears** to invent– or an incredible amount of money to buy the rights to– the widget, wants to sue.  Now.

Well, don’t you think you might have to serve the offshore bad guy?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, for most of the world, start off by looking up the Hague Service Convention.  It’s mandatory doctrine if you need to serve OBG in his homeland.

In all likelihood, you’ll have to set up a translation of the documents– and that’s a big deal with patent cases, so here’s a handy guide on how to keep those costs down.

Then, you’ll have to determine what alternative methods are available.

Then, if you go the Article 5 route, ask the appropriate foreign Central Authority for help.

Last, pray that you’ve filled out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

If you don’t get him served…

This is Ned Stark.

You’ll have a tough time making the patent-holder whole.


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Apologies to a certain Mr. C of Blenheim, Oxfordshire.  The original quote included “blood, tears, toil, and sweat” but a 1970s fusion band morphed it a bit for brevity.

Two years ago, I wrote about the “coming of age,” if you will, of service by electronic means.  Well, the idea just hit the bigtime with service on Wikileaks via Twitter.

Setting aside questions about properly identified defendants (read: properly named entities and individuals associated with them), his one seems to fit squarely with a Rule 4(f)(3) alternative.  That is, the legality of it seems okay.

If Wikileaks has an address, it seems for the moment that company HQ is inside the Ecuadorian Embassy in London– a mere 20 miles from me as I write this.*  This could mean either of two governing regimes controls: the Hague Service Convention or Rule 4 alone.

If the Embassy is viewed as Ecuador’s sovereign territory, no mandatory treaty governs manner of service.  If it’s not (and the UK apparently takes this view), Hague channels just aren’t tenable.  No process server is getting in the gate, and neither is an English judicial official.  Mail is silly to even contemplate, whether sent from the clerk or from the UK Central Authority– it’s a non-starter to think Julian Assange is going to sign for a FedEx delivery from either.  (UK service under Article 5 is usually mailed.)

So, what’s a court to do?  Authorize an alternative means that, under the circumstances, is reasonably calculated to put a defendant on notice of a claim against it– and offers an opportunity to defend.**

That’s the constitutional standard, and it seems to have been met here.

Now let the substantive arguments begin.  (There are some whoppers to come.)


* My last dispatch from England this trip… ironically a trip to discuss Hague service with colleagues from the UK and the US.  I write this from a bus on the way to Heathrow.

** See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) for the full discussion.

The mind just reels.  I’m in England at the moment, and an England issue has come up that I cannot bear yet again without a rant.  Forgive me…

Lawyers, stop taking legal advice from non-lawyer process servers.  Just stop it.  That goes double for non-lawyer process servers in other countries.

Seriously– it’s like an MD taking diagnostic direction from a CNA.  Sure, the aide is a vital part of the medical team,* and they do some amazing work.  But if things go badly, the malpractice suit isn’t coming at the aide.  Yes, the physician has to rely on the aide’s input, and the aide may be incredibly talented at carrying out a treatment plan, but the responsibility of decision lies with the person with all those fancy diplomas on the wall.

Twice in as many weeks, I’ve had U.S. lawyers call me to ask how much it costs to have a defendant served in (England, India), and I unabashedly tell them what I charge.

Oh, that’s too much.  I’ll just go directly to a process server.  I emailed a guy in (London, Bangalore)– he tells me it’s no sweat– he can fix me up for about what my local guy charges me.

So this is me, for a moment…

Ahem, no.  It doesn’t work that way.  In either country.  The Hague Service Convention governs both scenarios, and both countries’ declarations are pretty straightforward on how to effect service.

Options in ENGLAND:
  1. Article 5 request to the Central Authority.
  2. Mail, under Article 10(a)… almost always a bad idea.
  3. Private Process Server, Article 10(c).

But the UK position on Article 10 carries a caveat: using a process server is only valid if that process server is instructed by a solicitor.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.

Options in INDIA:
  1. Article 5 request to the Central Authority.  END OF LIST.
  2. THERE IS NO OPTION TWO IN INDIA, despite what India-based process servers may tell you.

The truth is, India is one of the few common law jurisdictions that doesn’t have them except in rare circumstances.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.  A guy in Bangalore saying he’s a process server is a bit like an Über driver  in New York saying he can fly you around in his drone.  Yeah, it’s theoretically possible, but… jeez.  Come on.

So why would one of those folks overseas make claims like these?

  • Oh, yes, we can serve those documents in Gujarat for you.  Nooooo problem.
  • No, you don’t have to worry about the Hague Service Convention.  Nobody here takes it too seriously.
  • We’re a common law country, just like you.  We do things the same way you do.
  • Of course I can take instruction directly from you, mate.  You’re a lawyer, right?

Why do you think they make such claims?  Because they have a commercial interest in convincing you to hire them instead of a U.S. lawyer who handles this sort of thing all the time.

But here’s the huge difference: a U.S. lawyer who handles this sort of thing all the time is actually cognizant of (and concerned about) compliance with U.S. law as it relates to the treaty.  We actually understand that Sandra Day O’Connor’s thoughts on the matter are a bit more valid than those of the fellow in London or Bangalore.

The takeaway from this rant?

  • In England (and Wales), make sure your process server understands that his/her affidavit must (1) demonstrate that Hague doctrine has been observed, and (2) reflect that s/he is instructed by a solicitor.
  • In India, don’t even bother.  You’ve got to make an Article 5 request to Delhi.

Oh, and if you try pulling this stunt in China… you and the guy you hire are subject to arrest and imprisonment.

I hear the food’s not very good in Chinese prisons, so good luck.

 


* I use this analogy carefully– my grandmother was a nurse’s aide, and she was the most competent caregiver I’ve ever known.  This post is not about whether process servers know their stuff.  They do– and I have several that I rely on regularly.  But legal analysis isn’t their stuff.

** The Hague Service Convention– including a foreign countries’ declarations to it– constitutes supreme U.S. law, which particularly overrides conflicting lower law.  That pesky old Supremacy Clause strikes again!

The Royal Courts of Justice, London.  Cristian Bortes, via Wikimedia Commons.

Set aside any opinions on the merits of the Steele Dossier story– this is not a political commentary.  It is is a high profile illustration of something I’ve been preaching for a long time.  And it just so happens that I’m in England at the moment, to present on Hague issues for UMKC Law’s Oxford CLE program* and get a jump on my next reporting year.

This seems the perfect time to preach again.  The sermon:

Production of (third-party) evidence located outside the U.S. cannot be compelled with a U.S. subpoena.

Forget it, because it ain’t gonna happen.  I elaborate in my post “Hague Evidence Requests: 3 Cardinal Rules“… you cannot just serve a subpoena abroad and have it matter.  At all.   A subpoena loses its coercive effect when it leaves the jurisdiction, and only regains that coercive effect under a statute or domestication in the destination jurisdiction.

But every once in a while, somebody becomes a cheeky monkey and tries to argue that common law is common law, and another common law court will domesticate a common law subpoena, no problem.

Ahem… no.

Oh, sure, Florida might willingly domesticate a Missouri subpoena.  Missouri would do likewise with a Vermont subpoena.  Why?  Full Faith & Credit, that’s why.  But that doctrine does not extend north of the border or across the North Atlantic to this blessed plot, this Earth, this realm, this… ENGLAND.  A Letter of Request is the proper instrument to compel production:

  • In Canada, a classic Letter Rogatory, filed directly with a Canadian court of appropriate jurisdiction.
  • In England, a Hague Evidence Request.

Functionally, they’re the same thing.  They’re just conveyed differently.  Both paths eliminate the need for the State Department to handle them (and charge $2,275 for the favor).  But even though both countries are common law (I mean, because England), they still require adherence to those Cardinal Rules I described in 2016:

  1. Be surgically specific in identifying the evidence, whether testimonial or documentary.  (A very narrow WHAT.)
  2. Demonstrate a high degree of relevance, and tell the foreign authority how that evidence will be used at trial.  (A very narrow WHY.)
  3. For crying out loud, hire foreign counsel to help you draft the thing– and then argue about it if the foreign target (or a party-opponent) opposes its execution.

Now we have an appellate opinion to provide a definitive foundation for the first two of those rules (I rather think the third is self-evident).

In Buzzfeed Inc and another (Appellants) v Aleksej Gubarev and others (First Respondents), Christopher Steele (Second Respondent), [2018] EWHC 1201 (QB), the English High Court endorsed a pretty thorough ruling by Senior Master Barbara Fontaine** (hat tip to Ted Folkman for posting the Fontaine decision a few weeks ago, and the affirmation more recently).  The High Court is really a first-instance venue, but just as Article III judges hear appeals of Magistrate rulings, the EWHC hears appeals from Masters’ decisions.

Master Fontaine’s position, in a nutshell: we’re going to help our American cousins as much as we can, but… not if they’re allowing the parties to go fishing, and not if they haven’t shown me that the evidence sought is relevant to the proceedings.  (She even noted that the U.S. court had deferred to her judgment as to the relevance analysis!)

Stefan Bellini, via Wiki.

Essentially, Justice Jay’s opinion lays out the rationale that, because American courts don’t delve as deeply into relevance when requesting particular evidence, Hague requests can go pretty far afield from what’s actually admissible or appropriate.  As such, the Master has to sever certain parts of it.  In the end, the High Court thought Master Fontaine appropriately did so in the Buzzfeed case.

In reality, this isn’t far off the mark– American-style discovery entails a “produce now, and we’ll argue relevance at trial” mentality– go fishing, it’s okay!— and that is badly frowned upon even in other common law jurisdictions.  Truly, our Rules of Evidence exist primarily so that judges can exclude fish from being waved around the jury box.  But the English system hasn’t the need for such limitations– civil jury trials are exceedingly rare (no 7th Amendment), and their judges are pretty capable of determining what’s what.

Justice Jay laid out a pretty good framework for Hague Evidence Requests (to summarize):

  1. We (English courts) will do all we can to accommodate them (comity, after all), but although it isn’t appropriate for English judges to assess relevance under U.S. law, we have to have some indication that the U.S. judge has undertaken the assessment in the drafting of the Request.  If they don’t, we must, and that may necessitate a bit of cutting here & there.***  In short, give us a very narrow WHY.
  2. The scope of the request has to be limited, not just for relevance, but for the avoidance of oppression.  That is, don’t make it too vast, and don’t make it too vague.  Put your fishin’ rod away, or we’ll have to cut a bit here & there.  Give us a very narrow WHAT.

Conclusion:  The Special Master was right.  The U.S. court didn’t assess relevance, so Fontaine had to, determining that some of the evidence sought didn’t connect the dots.  Moreover, the scope of the requested questioning went too far.  For both reasons, she had to sever certain parts of the request.

Ah, guidance.  A wonderful thing.

 


St. Edmund Hall, Oxford. Founded in 1226, the oldest college at Oxford University, and the site of our CLE conference.

* The UMKC program takes place annually in the summer.  Comparable programs are also available in the fall, alternating between Rome (odd years) and Paris (even).

** Master Fontaine’s position is the oldest judicial post in England that remains in use (I got that from Wikipedia).  The office of Queen’s Remembrancer was created in 1154 by Henry II (okay, so it was the King’s Remembrancer… pipe down).  More pertinent to my practice is that she is the judge responsible for requests submitted pursuant to both the Hague Service and Evidence Conventions.

*** In the U.S., we say the judge would redline parts of the list.  Overseas, they say the judge would blue pencil parts of the list.  Either way, it’s sort of a line-item veto, but their way doesn’t conjure unhappy memories from junior high school.

Have fun, y’all…

Thinking back to Business Organizations class (because calling it “Corporations” doesn’t go far enough), one of the most important lessons I picked up was the importance of properly naming defendants in a lawsuit.*  Just as you wouldn’t call a defendant Daniel when her name is Danielle, don’t call it the XYZ Corporation if it’s really XYZ LLC.  When you boil it all down, that’s the entire point of BusOrg class– parsing the differences between the various alphabet soup combinations that make up the American business landscape.**

But broaden that to the world beyond our borders, and you’ve got problems if you don’t have a handle on the soup.  Fortunately, you’re not completely on your own.  Thanks to Jimmy Wales‘ favorite product, it’s pretty easy to look up.

While I would never advise anybody to cite Wikipedia as an authority– legal, academic, or otherwise– the value of the platform as a research tool is hard to overstate.  There’s a great Wiki on types of entities around the world, broken out by country.  My favorite of all time is the Aktiengesellschaft (AG), a German corporation.  Close second: Gesellschaft mit beschränkter Haftung (GmbH), a German LLC.

Say either of those ten times fast.  G’head… it’s fun.

Of course, you’ll have to observe the Hague Service Convention as you’re haling these outfits into court, but once you’ve named the defendants in the caption, use the Wiki to describe the defendant in the “Parties” section of the complaint:

  • Volkswagen AG is a German corporation.
  • Robert Bosch GmbH is a German limited liability company.
  • Airbus SE is a corporation organized under the laws of the European Union and headquartered in Toulouse, France.
  • Airbus Helicopters SAS is a French closely held corporation and a subsidiary of Airbus SE.
  • Angela Merkel is the German Chancellor and the subject of a hit Broadway musical.  (Okay, she’s a natural person, which is not defined in the Wiki.)

Just as you mustn’t confuse Inc. or Corp. with LLC, you mustn’t confuse AG with GmbH, or SA with SàRL… you get the picture.

And on the subject of pictures, cruise over to RedKid.net’s soup meme generator and make your own message in noodle lettering.  Just keep it clean, m’kay?


* Yet another hat tip to my BusOrg professor, Tony Luppino.

** In an exceedingly ironic twist, two hours after writing the initial draft of this post, FedEx Freight showed up at my door.  “Is this Viking?” the guy asked.  Yeah, says I, as he tells me he has a single skid to offload (You mean a pallet?!  OF WHAT?).  Turns out, it was a pallet of valves bound for Viking Group, Inc. (twelve miles away) instead of Viking Advocates, LLC.  Poor guy was given the wrong address on the manifest because somebody didn’t take BusOrg.

Grace Bailey, Maine Windjammer Cruises, Camden.

[Author’s Note:  This morning, Peggy and I woke up in 1882.  No, really.  We are on board the schooner Grace Bailey for a bit of a break from Missouri’s brutal humidity & heat; if you email me this week, fuggedaboutit.  You’ll get my out-of-office response for the first time in well over two years.  Our floating home cruises by wind off the coast of Maine, lacking internet access and a cell signal and electricity (horror of horrors– we actually have to read books and talk to other human beings while underway!).  It seems the perfect reason to post today’s subject: serving in maritime cases.  Yes, this is written in advance and scheduled to post while we’re sailing, sailing, over the bounding main.  Whatever that is.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a bankruptcy lawyer, I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

I don’t react positively, as you might imagine.  [I explain their error here.]

Fortunately, though, folks who handle maritime claims know full well that their defendants are often located abroad– that’s the very nature of oceangoing– so they understand the deal.  What they sometimes don’t understand is the point in my Boromir slide (right up there ^^^).  If they’re serving Hapag-Lloyd, they can’t just serve by mail, even though mail service is clearly acceptable under the Hague Service Convention and the FRCP.  See, both Article 10 and FRCP 4(f)(2)(C) only allow mail service if the destination country allows it, and Germany doesn’t.  But the only way to know that is to either (1) read Germany’s declarations to the Convention or (2) read my blog on how to serve in Germany.

They also often don’t ponder the distinction between a defendant’s acceptance of service and its waiver of service.  There’s a massive difference between the two– one requiring adherence to Hague requirements and the other dispensing with them altogether.

And lest they think that service on Hanjin Shipping is effective by handing the documents to the captain of one of its ships while she’s in port… ahem, no.  You can’t serve the owner by merely tagging its vessel (just as you can’t serve a parent company via its U.S. subsidiary).

If you’re serving…

  • Hanjin or Hyundai, you go to Korea.
  • Maersk, to Denmark.
  • COSCO… China.
  • MSC… SwitzerlandWait– isn’t Switzerland landlocked?  Well, yes, but how many maritime lawyers are part of the Kansas City bar, smart guy?  (Several, as it turns out.)

All of those countries have different declarations & requirements.  And if you don’t satisfy those requirements…

This is Ned Stark.

* One type of maritime issue that doesn’t usually need Hague analysis: cruise ships.  I’m told that the terms and conditions of cruise companies’ tickets usually include a designated agent for service in the U.S.   Who knew?

Peggy and I just took a time warp to 1882.  No, really.  We are on board the schooner Grace Bailey for a bit of a break from Kansas City’s brutal July weather.  All week, we’ll be sailing, sailing, over the bounding main (whatever that is), but not accessible to handle client needs.  If you email me this week, fuggedaboutit.  You’ll get my out-of-office response for the first time in well over two years.  Our floating home is propelled by wind, off the coast of Maine, lacking internet access and a cell signal and… electricity.

A few weeks ago, I was chatting with my favorite new client, letting her know that I’d be out of pocket all this week.  “When I say ‘out of pocket,’ I mean I will be on this thing…”

Grace Bailey, flagship of Maine Windjammer Cruises.

The thought occurred to me that, fairly regularly, I will field a frantic phone call or desperately drafted email from a lawyer or paralegal facing an imminent service deadline.  Two years ago, I posted “There is no such thing as a service of process emergency” to illustrate (1) the glacial pace at which service abroad can sometimes move, and (2) the widespread safe harbor afforded by court rules.

At the federal level, Rule 4(m), along with the case law construing it in transnational cases, invokes a reasonable diligence standard, and gives ample time to litigators who need to serve offshore defendants.  Just about all state rules (sorry, Wisconsin & Michigan) offer some sort of extension or similar reasonable diligence standard– if not automatically, then by fairly pro forma motion.

The point is…

Relax.

Really– relax.  Perhaps call Margaret and the good folks at Maine Windjammer Cruises and see what they can put together for you.

As long as you’re not at Day 80 with a 350-page patent infringement claim to translate and serve in China* or some such scenario, you’re going to be okay.  I promise.  I also promise I’ll get in touch with you as soon as I dig out of the thousand emails (not an exaggeration) I expect to have waiting for me when we reach safe harbor at the weekend.**

 


* In which case, I probably can’t help you anyway, unless you’ve been trying to secure a waiver from the defense.  In any event, a few days is unlikely to upset the apple cart.

** See what I did there?  Safe harbor!  Yeah, yeah– Peggy’s always saying “if you have to explain it, it’s not funny

“Worried People,” Pedro Ribeiro Simões, via Wikimedia Commons

Twice in two hours this afternoon, I’ve fielded somewhat worried emails:

  • “Hey, Aaron, I just heard from opposing counsel that the defendant was served in Tokyo last week” and
  • “I’ve just been told that the defendant in Paris was served two months ago, and they haven’t answered the complaint yet.”

Both statements were followed with the very reasonable question, “where in the hell is the proof?”  This happens at least a few times a month, often along with “the judge is threatening to dismiss this thing.”

Well, first, relax.

In federal court, you’re not subject to the 90-day deadline in Rule 4(m) when serving abroad– you’re under a reasonable diligence standard.  In just about every state, the same result occurs, whether through a rule that tracks the FRCP, or through case law (I’m looking at you, New York).  If the same safe harbor isn’t there automatically, the judge can extend for good cause.  And what better cause than a mandatory procedure that depends entirely on a foreign bureaucrat being motivated and quick?  (Sorry, Michigan & Wisconsin… you guys have it rough, but call me and let’s make some new law together.)

The quick answer to the very reasonable question, “where in the hell is the proof?” is that I really can’t tell you.  It could be sitting in a clerk’s “to do” box somewhere overseas, or it could be in Dave’s satchel a block over on Rockhill Road, and he’ll be along shortly to drop it off.*  Unfortunately, there’s not much I can do to push the situation along.

This is not a problem, and it’s not out of the ordinary.  I frequently tell clients that they will likely hear from opposing counsel before I hear from an Authority.  If they learn that the defendant has been served, but we just can’t prove it– yet– it often means that the proof of service can be stapled to a motion for default judgment.

Sure, if I expect that something’s been lost– it’s been nine months when I expected it back in four or five– I can contact the Central Authority.  But as long as we’re within the normal timeframe, it could actually be counterproductive to pester them.**

Above all, though, don’t worry.  Things move much more slowly abroad than they do here, and if you must serve abroad pursuant to the Hague Service Convention, the judge mustn’t worry either.


* Not his real name.  But Dave is my local Letter Carrier (that’s the official term– we used to call them mailmen, until Karl Malone started lighting up Utah).  He’s pretty cool.

** My kid sister used to bug me for things.  And the more she pestered, the less likely I was to accede to her requests in a timely manner.   Foreign bureaucrats can be a lot like that.

 

 

 

Wikimedia Commons

Ninety days.  That’s how long you have to serve your defendant, counsel.  If you don’t get it done, your case is dismissed.

Put another way… cross a certain line on the calendar without progress, and your claim is dead.

Ah, but wait!  The defendant is overseas, and Rule 4(m) says the 90-day deadline doesn’t apply!  I have to follow the Hague Service Convention, and that means months or years to get a proof back.

Well, that’s true (and I’m giddy that you recognize the mandatory nature of the Convention).  But that doesn’t mean you have unlimited time.  Rather than a hard deadline to serve, you’re subject to a reasonable diligence standard, which is usually interpreted to mean that you have 90 days to file a request with a foreign Central Authority.  If you don’t even try… dismissed.  [For a real world illustration, see Ted Folkman’s post on State Farm v. Amazon from last fall.  For some higher authority: Nylok Corp. v. Fastener World Inc., 396 F. 3d 805 (7th Cir., 2005).*]

Bottom line:  don’t drag your feet.

It ain’t rocket surgery.  Although it’s easy to get tripped up by intricate details here & there, getting a Hague request filed is not such an arduous task, especially when you can consult with other lawyers (hint, hint) who do this sort of thing regularly (I’m not the only one).

Now, to be sure, 4(m)’s automatic safe harbor doesn’t necessarily exist at the state level.  Many states’ procedural rules do track the FRCP directly, or with just a bit of variance (say, 60 or 120 days instead of 90).  Others have fairly liberal rules that allow extensions for good cause– and what better cause than a mandatory mechanism that requires counsel to rely on the caprices of a foreign sovereign?  Still others, especially New York, lack a codified safe harbor but reach the same result with case law.**

Only in Michigan and Wisconsin is the issue problematic… there’s no wiggle room in their respective rules.  Must be something about making beer and Buicks that warrants a hardline rule.   (Hey, Badgers and Wolverines and Spartans… I’m looking for a test case that runs into the deadline buzz saw up there.  I think I may have a good argument to carve out an exception.)

Elsewhere, rest easy– but not so easy that you’re deemed dilatory (yeah, I had to Google that one the first time I heard it).  Even though you have safe harbor, it doesn’t stay safe forever.

 


Yes, I know it’s summer. Watch this movie anyway. It’ll brighten your mood.

* Nylok was decided when 4(m) required service in 120 days.  The Rule has since been amended to 90, but the same analysis no doubt applies.

** The New York view on the matter is beautifully illustrated in Bumpus v. NYC Transit Authority.  CPLR 306-b requires service in 120 days, but Bumpus specifically acknowledges circumstances beyond the plaintiff’s control, including the delay caused by Hague strictures.  [Bumpus also specifically reminds me of A Christmas Story, so it’s incredibly easy to remember the citation.]