Photo by Behnam Norouzi on Unsplash

At least once a week, a client will ask how much time they should put in their request for an extension under Rule 4(m) when serving an overseas defendant.  My answer, as I’ve said before: DON’T.

Don’t request an extension. Don’t ask the court for “just a bit more time, Your Honor.”  Don’t even acknowledge that there’s a deadline, because there isn’t one.

Don’t request anything.  There’s nothing to extend.  If you request an extension, then you tell the court you agree that there’s a deadline (which there is not) and then you’ll play hell for the next 18 months begging for extension after extension after extension.

So stop it.  

 

If somebody in the clerk’s office barks at you about the 90-day deadline in Rule 4(m), tell them to read the entire rule.  Likewise the judge.

Rule 4. Summons

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

It bears repeating.  The deadline does not apply to service in a foreign country.
Does.
Not.
Apply.
Now, does this mean you have unlimited time?  Heck no.  It just means you have to be reasonably diligent, and that’s not a hard standard to meet.  If you call opposing counsel for a waiver or seek help from somebody like me to get the ball rolling, it’s going to be a piece of cake to show that you aren’t dragging your feet or wasting the court’s time.  The moment your request packet arrives at the foreign Central Authority, you are deemed diligent.
For a bit of elaboration on the time issue, see the following:

If you’re in state court, I hope it’s Colorado or Maine (among others), where they’ve pretty well adopted the federal view of things.  Most state rules do provide an extension mechanism (in which case, ignore all that “DON’T” admonishment above), so you should be okay.  Sorry, Wisconsin & Michigan… y’all got problems.  Or, you could just go federal at the outset.

Above all, know that treaty adherence is mandatory when you’re serving in a Hague Service Convention country.  Says who?  Says her:

O’Connor, J. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

My inbox frequently pings with an important query:

“Hey, Aaron, can you introduce me to local counsel in (Country ABC) to help with an enforcement action?”

Sometimes, you bet I can.  Ireland, Singapore, Germany,  Italy… no problem at all.  I’ve got people.

Other times, not so much.  Not because the country in question doesn’t have lawyers– but because I haven’t needed to make a connection there for whatever reason.

But the fact that I don’t know somebody “over there” isn’t the end of it.  A little known resource provided by the U.S. Department of State has usually yielded good results for me: the Legal Assistance lists available from the U.S. Citizen Services offices in our embassies worldwide.  Here’s how to find somebody (it’s really quick):

  1. Google “U.S. Embassy (Country ABC)”
  2. The search should show a link to U.S. Citizen Services right within the initial organic results, so you won’t have to navigate much.  If it doesn’t show up immediately, no worries.  Click onto the main page for the embassy, and you should see a comparable link without a lot of fanfare.
  3. On the U.S. Citizen Services page, scroll down to Local Resources, and click on Legal Assistance.
  4. The Legal Assistance page will show a list of English-speaking attorneys in that country who have identified themselves to the embassy staff and indicated that they welcome American clients.
  5. The document may even break down the list by geography and specialty (both are critical to finding the right colleague).

This list is not an endorsement of those lawyers by the U.S. government– it’s merely a resource, but I’ve always had pretty good luck with it– and have even gained a couple of friends out of the deal.  Also worth noting– many Canadian embassies maintain similar lists of attorneys who welcome Canadian clients– frankly, if you can’t find somebody on one country’s site, try the other!

James Bond’s sidearm of choice, the Walther PPK. Tomascastelazo via Wikimedia Commons.

Mid-conversation with a client last week, I’d passed the point of exasperation.

Good grief, Dave, we’ve been through this before.  Why didn’t you call me BEFORE you filed this thing?!

I’ve known Dave* for a few years.  He’s a patent litigator, and I’ve handled a few Hague Service Requests for him in those few years, but they all went to countries where translation was not an issue.  Even at that, they’d usually only involved one or two actual patents.  This time… a seventy-page complaint, exhibiting five patents, each about twenty pages long with tiny print, and going to three different countries.  All of which are Hague Service Convention parties, and all of which require translation.

You can see where this is going.  Several years ago, I posted Keeping Translation Costs Down, Part Deux (for Patent Litigators), where I suggested that, instead of attaching patents to the Complaint as exhibits, why not simply incorporate them by reference?  Some of my clients have done precisely that, providing a link to the PTO’s website so the patents at issue could be readily accessed with a single click (everything is on PACER now anyway, amirite?), and keeping the pleadings to a short and plain statement of the claim.  Their bills… minimized as much as possible.

Oh, but not Dave.  Dave is an old-school lawyer who thinks he gets paid by the word.  Put everything in there but the kitchen sink.  This is war, and Dave’s coming loaded for bear.

His costs– just for translation– were slightly north of $70,000.  That wasn’t even the frustrating part– after all, I’m not the guy footing the bill.

The frustrating part was that Dave only called me after his senior partner hollered “LOCK AND LOAD!” and the case was filed & ready to serve.  Dave only called me after he misnamed two of his offshore defendants.  Dave only called me after he’d used his one free amendment-as-a-matter-of-course.  I could have saved him a whole lot of heartache, and I could have saved his client a massive pile of cash.

Y’all, “trigger time” is not when you should tap me on the shoulder.  That time is before you even chamber a round.


* No, his name is not really Dave.  Yes, I’ve known him for years.  Details have been changed here to protect the innocent, but this illustrates a conversation I have at least once a month, with new clients and longtime clients alike.  My frustration level varies directly with the amount of money they could have saved if they’d only called me before they filed.

Ministry of Justice, Warsaw. Adrian Grycuk, via Wikimedia Commons.

I say all the time that we aren’t building rockets here.  But we are building a ship, of sorts, and a leaky ship means that people could not possibly reach North America from Europe.  A whole bunch of immigrants from Poland actually did reach North America over the past centuries, and they enriched our culture in a host of different ways– even making Chicago the second-largest Polish city (at least, at one time).  With so many family ties to the old country, it’s no surprise that litigation pops up now and again, which means attention must be paid to doing things right.

Serving process in Poland is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to get it done:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Poland:

Article 5 Service

  • Translate the documents. Poland’s declaration to Article 5(3) does not specifically require documents to be translated, but the defendant is afforded a chance to reject untranslated process.  That rejection puts you back at square one, and that’s not a fight worth having, if you ask me… just translate it.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case Ministry of Justice in Warsaw.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • They simply aren’t available, because Poland objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Poland’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.

The Mortuary Temple of Hatshepsut, Thebes. Vyacheslav Argenberg via Wikimedia Commons.

Nope.  We’re not building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  Likewise, service of process in foreign countries must be undertaken in a very particular way, lest a judgment be thrown out later (or never won at all).  Serving process in Egypt is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

You’ve got three ways to go:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  At least not if you want it to work. You have to file a Hague Evidence Request in most instances– or a Letter Rogatory in Egypt, which isn’t part of the Evidence Convention.  Dramatically different from serving a summons or notice.

Here’s how service is effected in Egypt:

Article 5 Service

  • Translate the documents into Arabic.  Egypt’s declaration to Article 5(3) doesn’t specify whether it’s required, but do it anyway.  Although the defendant may speak flawless English, omitting translated documents could prompt the Central Authority– or more likely, some local official– to reject your request.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely several months or more, from submission to return of proof.

Article 10 alternative methods

  • They simply aren’t available, because Egypt objects to them all. Article 5 is the only available channel.

That’s all there is to it.  There’s really only one way to get the job done, and going around official channels to effect service is a surefire path to disaster..

Egypt’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Sunnmørsfæring exhibited at Herøy Coastal Museum, Møre og Romsdal, Norway. (Photo: Silje L. Bakke, via Wikimedia Commons)

Another Frequently Asked Question on board this little Faering that is my law firm:

“Does my translation have to be certified?”

By frequently, I mean at least once a week for several years.  Most recently, it came in the form of a comment on my old post, Yes, counsel, you do have to translate that thing, but it’s often a question in the mind of the lawyers and their staffs who call or email me.  Their Googling has led them to believe it’s a looming issue, and if they don’t have the proper certification, their Hague Service Convention request is doomed.

The short answer: no.  But with a trio of caveats.

First, I’ve actually seen Hague requests rejected because of the certification (that is, it has to be bilingual– English alone doesn’t cut it everywhere).  Net result: I don’t even send them anymore unless the foreign Central Authority insists on one.  Cert’s are handy to have on file just in case somebody questions the quality of the work later on, but I usually just tuck them into a folder and never look at them again.

Second, some countries, like Mexico and Austria, once rejected translations that weren’t done by their own court-certified linguists.  These folks were hard for translation companies to find, and their work was really no better than other professional translators, but their small guild monopolies* inflated prices to double or triple what those others charged.  Fortunately, such requirements have largely gone away, thanks to the Herculean efforts of the good folks at the Hague Conference on Private International Law.

Third, a specific exception comes to mind: Vietnam, whose declaration on the subject (buried deep within the Hague Conference website**), once stated specifically that translations attached to Hague requests must be certified.  That declaration is now worded quite differently, and the nuance brings me to my real point.

There’s no such thing as an officially certified translation.

Seriously– there’s no U.S. government agency, and certainly no international organization, vested with the authority to bless translation work or give it some sort of Good Housekeeping Seal of Approval.  But the new Vietnamese requirement (a rarity among states-party to the 1965 HCCH Service Convention) is very nicely worded:

“… all documents to be served in Viet Nam must be either in the Vietnamese language or accompanied by a Vietnamese translation, in which case the signature of the translator must be duly verified or notarized.

(Emphasis mine.)

Therein lies my point.  A “certified” translation is not blessed by some higher authority.  It is certified in the sense that the translator (or more broadly, the translation company) states under oath that she or he is competent to do the work and that she or he stands by that work.

The distillation of all this:  don’t get hung up on certified translations.


* Far be it for any lawyer to gripe about guild monopolies.

** You have to know where to look.


Not that it’s relevant to U.S. and Canadian practitioners (aside from mes amis au Québec), but Australia requires certifications… its various states require some variation on this formula, which spells out what a true certification is:

Please note: the translation must bear a certificate (in English), signed by the translator stating:

    • that the translation is an accurate translation of the document
    • the translator’s full name and address, and
    • his or her qualifications for making the translations
A CPAP machine, just like mine. This one is made by the good folks at ResMed– which is not the manufacturer at issue here.  Image: Mosquitopsu, via Wiki.

A real world illustration has become fairly frequent of late… but it needs a bit of personal background.

Some years ago, my life changed dramatically– and for the better.  My doctor sent me to a lab for a sleep study, in which I spent the night in a hospital room that had been dressed up in the style of a very spartan hotel.  A nurse attached no fewer than 137 electrodes to various parts of my upper body and lower legs and then said “sleep tight” before her shift ended and she went home.  This was at 11pm, and I was nowhere near tired, so I channel surfed for an hour or so, and finally dozed off, remote in hand.

Around 7am, a different nurse shook me awake and said “go home, kid.”

But wait, I said.  Tell me about the test!

“Oh, you’ll have to talk to your doctor about that.  I can’t diagnose you.  Although… you registered twice the minimum number of episodes to be diagnosed with obstructive sleep apnea, so I suggest that you get used to looking like Luke Skywalker when you sleep.”

Three mornings later, I woke up feeling more refreshed than I had in years.  Quite literally, a little machine, no bigger than a shoe box, had forced my airway to stay open all through the night, so I could breathe… continuously.  It was a miracle called Continuous Positive Airway Pressure… CPAP for short.*

Fast forward to last month, and a recall comes out from Koninklijke Philips N.V., the Dutch electronics conglomerate that I usually have served in IP suits.  Turns out that the foam sound baffling material in Philips’ CPAP machines can disintegrate and be inhaled or– given the CPAP’s entire purpose– forced into the user’s lungs.  It’s unhealthy, to say the least, and possibly even carcinogenic.  So Philips has wisely recalled the problematic devices.

But now come the plaintiffs into court… courts worldwide.**  And they have to serve Philips… in The Netherlands, which implicates the Hague Service Convention and all of its quirks.

A huge challenge, you ask?  Not really.  Here’s the How-To guide to serving a Dutch defendant in its (or his/her) home country, complete with a couple of handy tips on keeping costs reined in.  [Hint… scroll to the bottom for our digits.]


* Thanks to other miracles of modern medicine, I don’t need the machine anymore.  Best result?  No snoring… which pleases my wife to no end.

** See the Boston Globe’s more comprehensive coverage of the issue– and some of those suits– here.

A huge chunk of my practice arises from inquiries lawyers send through this blog– and it stands to reason.  Look over to the right  and you’ll see our contact information (scroll all the way to the bottom if you’re on a phone or tablet).  In a perfect world, we’ll get a chance to talk on the phone, bat around ideas, and collectively grumble about the utter silliness that is the Langdellian method.  Inevitably, we ask the following questions, whether by phone or email, because “hey, Aaron, what do you charge to serve a defendant overseas?” just doesn’t give me enough to go on.

Rather than give the trite lawyer answer “it depends,” I ask pretty much the same questions every time.  The answers vary, of course, and often lead to more questions and ultimately, the various conclusions that I can offer as recommended next steps.

The big questions:

How many defendants?

Seemingly a simply query, but you’d be amazed at the number of folks who think a case is a case is a case, and it would cost the same to serve a single defendant in Brazil as it would to serve two each in Mexico, Germany, and Korea.  This drives cost in a direct and profound way.

Where is he/she/it?  (Where are they?)

The single most important question in the list.  Geography drives everything, because different rules apply in Beijing than in Hong Kong.  It’s done differently in Scotland than in England & WalesOntario versus QuébecC’est différent, mon ami.  Très, très différent.

Individual or entity?

For the most part, the manner of service doesn’t change, but it some places, quirks apply, and they necessitate a different approach from one to the other.  For instance, you can’t serve an individual defendant at his workplace by substitution (though you might at his home).  It’s tougher to find an individual than an entity– for the same reasons abroad as you’d face here at home.

What kind of documents do you need to serve?

The word “process” does not appear in the Hague Service Convention.  Seriously.  Click here and do a word search.  The Convention covers so much more than just the documents that initiate the case.  Default notices, subsequent pleadings & amendments, continuance orders… if they have to be served in a country where it applies, then the Convention must be observed.

But what of subpoenas and other discovery demands?  Well, not so much.  Sure, theoretically, they might be served, but in all likelihood, they’d have no teeth, and it’s possible they might irritate the heck out of a foreign court.  In civil law jurisdictions particularly, the parties don’t demand production– that’s a function of the court, so don’t usurp it!  (The Hague Evidence Convention is often the key.)

What venue?

Whether you’re in federal or state court doesn’t matter much in terms of Hague applicability, but which procedural rules work in tandem with the Convention is a critical question, especially with regard to timing and alternative methods.  Sure, there are myriad reasons to keep the matter in state court if at all possible, but your client might be better off if you go federal at the outset.

Does your defendant speak English?

Often times, the question is irrelevant, as most non-Anglophone countries require translation as a matter of course (ie: the defendant’s comprehension of English isn’t the issue).  But in places like the Netherlands, Belgium, Finland, and Québec, huge cost savings can be realized by just serving the docs as they are.  It often isn’t necessary to translate.

Any chance you might be removed (or remanded) soon?

Take a gander at Civ Pro for 4L’s: Removal and Service of the Correct Summons.  Getting involuntarily bumped from one venue to another changes not only the list of operative documents that must be served– it also has a profound effect on timing.

————————————

Wrapping it all up…

Of course, this is not an exhaustive list.  But it does tell you why the “how much?” question is so complex, and why the classic lawyer answer “it depends” has so much more loaded into it.  Above all, this is such a complex area of practice that it’s unwise to go it alone.  Recognize that I am not the guy to take the lead on an IP case, a divorce, a contract dispute, or a wrongful death action– against any defendant, offshore or here at home.  Those cases lie outside my expertise.  Likewise, call in some help to handle the cross-border issues that inevitably pop up in those sorts of matters.

 


Hat tip to Dan Harris and his crew at the China Law Blog, for posting Registering China Trademarks: The Questions We Ask and International Manufacturing Agreements and the Questions We Ask, thus giving me the idea for this space.

 

 

 

An interesting quandary pops up fairly regularly, and I find myself explaining the issue so frequently that it warrants a post.  [TL;DR… in the U.S., corporations and other entities created pursuant to statute have registered agents.  Elsewhere– and I mean just about everywhere else– the same types of entities only have registered addresses.  You don’t have to worry about whether you’ve designated the right individual officer because there isn’t one.]

To the average lawyer in the U.S., defendant entities should be served by delivery to their registered agents.  In most U.S. states (or maybe it really is every state), an entity has to list a specific person or entity to act as its agent for service.  Pretty straightforward stuff… I am the registered agent for my law firm and my wife’s consulting firm (both LLCs), and act as an agent for a few Missouri trusts established by a colleague who lives on the other side of State Line Road.  Hand a summons to me, and you’ve served one or more of those entities.  If you’re suing a certain carmaker in Dearborn, Michigan (think blue oval, truck models beginning with the letter “F”, and most cop cars), you look them up through the Michigan Secretary of State and find that, hey… Ford is a Delaware corporation, with a Michigan “resident agent,” The Corporation Company, located just outside Detroit.

But let’s say your client was injured in a Land Rover.  A quick Google search tells you that the complete manufacturer’s name is actually Jaguar Land Rover Limited.  You’d go to the official Companies House site in London, where a quick search yields JLR’s registry and the knowledge that its registered office address is on Abbey Road in Coventry (no, not that Abbey Road).

You can click on the “People” tab to find out all of the company’s officers and directors, but two words you won’t see are “Registered Agent.”  The way they do it over there is to simply deliver process to the registered address, and it’s a done deal.  A receptionist, security guard… we hand the docs to whoever is in charge of the address, and Bob’s your uncle.

Just for funsies, change the defendant one more time– say the allegedly defective car is a Beemer.  It takes some digging to get to the German registry, but it shows BMW at Petuelring 130 in Munich (link has a bot-check)… and an address, but no mention of an agent.

That’s not a problem, especially in Germany, where service is actually of function of the court, rather than a duty of the plaintiff.  A judicial official usually effects service, and they verify that a request bears the right address, but you still want to get it right the first time.  Registries* are the best way to do that with entity defendants.  Just disregard the lack of a designated agent.  It’s no problem.


* The English registrar of companies maintains a fantastic list of links to other countries’ registries.  They’re not all easy to navigate, but this is a great resource that has alleviated hundreds of headaches for my clients.  That’s how I got to BMW in Germany.

Sunset over the Isle of Arran, in the Firth of Clyde, Scotland.

Two or three times a week, I’ll get an email or phone call from a civilian (ie: somebody wise enough to have avoided taking a bar exam) seeking help with a cross-border issue.  The majority are pro se spouses (or ex-spouses) who need help serving a divorce action or petition to modify custody or child support.  Quite often, it’s a business owner in conflict with an overseas supplier.  Occasionally, it’s an injured party seeking damages from a foreign* manufacturer or visiting driver from abroad.

In each and every case, I tell the caller, “have your attorney get in touch with me and I’ll be happy to help.”  Their responses usually come in one of four forms:

  • Will do.  You should hear from her tomorrow.

Excellent.

  • I don’t need a (*!@&ing) lawyer.  Go (*!@&) yourself.

[I have no problem hanging up on these guys.  Yes, they’re universally men, in my experience.]

  • I can’t afford a lawyer.

[This one truly is heartbreaking, but I still can’t risk advising them, so I suggest contacting Legal Aid.]

  • I’ve tried to find somebody to help me, but they don’t understand the Hague and they’re afraid to take my case.

My reaction:

It’s this fourth one that most bothers me, because there’s no good reason for it.  There are any number of highly capable specialists** who can advise lawyers of every stripe on a host of niche questions.  There are a couple of us who handle service abroad almost exclusively.

Recognizing that there might be 137 different reasons to decline a representation, an offshore defendant shouldn’t automatically be one of them.  All other factors being equal, take the case, and then avail yourself of the resources available to you.  The Hague Service Convention doesn’t have to be the daunting, 800-pound gorilla it’s reputed to be.  At the risk of sounding all sales-pitchy, you’ve got three ways to go:

  1. Tap us on the shoulder for bespoke attention — or tap somebody on the shoulder for help,
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your Hague forms, or
  3. If you’re feeling froggy & are confident enough to handle it yourself with a bit of guidance, see “How to Complete a Form USM-94” for a step-by-step primer.  It lays out the framework you’ll need.

But above all, don’t decline a case merely because you don’t know everything there is to know about tagging offshore defendants.

That’s what we’re here for.

 


* It’s a term of art.  Here, I mean foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.

** The word “specialist” is a minefield for Missouri attorneys.  It causes myriad headaches in our bar, and others– but the simple fact is that lawyers specialize.  Unless you’re a small-town generalist, specialization is the only way to make a go of it as a lawyer in the 21st century.  There’s certainly merit to the restriction: if a lawyer says they specialize in XYZ, and they really don’t know much about XYZ but birddog cases to refer out to somebody else for a fee, that’s bad.  But the truth is, I’m far more honest if I say I specialize in something– and accept work only in that field– than if I just put up a website that says “Lawyer!” and lead the public to think I can handle anything that comes my way.  We can call ourselves experts (just as questionable), and we can say our “practice is limited to XYZ,” but each says something different.