For real. This is a screenshot of the registry for the biggest company in England. Handy to have when you need to serve.

Say what you will about law professors– the best ones always hammer on the most important mantras that soon-to-be lawyers must internalize even before the bar exam.

  • Don’t have (relations) with your client. [Sadly, yes, it’s still necessary to say this.]
  • Don’t steal your client’s money. [Still necessary to say this, too.]
  • Keep reading. [This is one that I’m constantly telling clients to remind the judge about!]

But the biggest one:

  • BUILD A RECORD. [This one is prescient in my particular niche of niches.]
Continue Reading Always take screenshots of address sources. Always, always, always.

John McArthur via Unsplash

Every once in a while, the Venn Diagram of Treaties overlaps a bit.  In my line of work, it’s usually the interplay of various Hague Conventions– noting that there is no such thing as “The” Hague Convention— which pertain mostly to private international law.  Lots of civil stuff in play with these, the most frequently used examples:

  • Hague Service Convention, 1965
  • Hague Evidence Convention, 1970
  • Hague Child Abduction Convention, 1980
  • Hague Adoption Convention, 1993
  • Hague Child Support Convention, 2007

There is also no such thing as “The” Montréal Convention– there are more than just one– but in common parlance in the litigation world, there’s little doubt which is in play. Continue Reading The Montréal Convention and Hague Service

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server Germany” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Frankfurt or Munich or Berlin to walk up to a defendant and serve him.  One search hit says they can get the job done in five days (not legally, they can’t). Heck, there’s even another vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Still another says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN GERMANY.

PERIOD.

(Hint: they don’t have them.) 

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in Germany, and you need to get him served mach schnell.**  So you Google “Process Server Germany” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch, except one German attorney who agrees that they don’t have process servers, but then erroneously asserts that you can directly engage a German bailiff.  On this side of the Atlantic, just a whole bunch of people who’ve apparently never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with Germany’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant over there, and it involves a very lengthy wait following a request to an appropriate state authority.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you– if you do, that guy could be looking at some trouble for usurping the state’s authority.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Hong Kong, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.

* Hague Service Convention… HSC for our purposes here.

** In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in Germany, and there’s no such thing as a service of process emergency anyway.)

How this concept turned into a series, I don’t know, but today we offer yet another description of the need to amend the standard language in a summons.

See my priors:

This time, we’re talking about good old Form AO440, the Summons in a Civil Action that is used to kick off a suit in U.S. District Court, and its use in Foreign Sovereign Immunities Act (FSIA) cases.

The standard AO440 sets a 21-day deadline for a defendant’s answer. If they’re served on December 3rd, they’d better answer by Christmas Eve, or come Boxing Day the plaintiff can staple proof of service to a default motion. Nothing odd or controversial about that.

Note the text that follows the 21-day language: “… or 60 days if you are the United States or a United States agency.” Still no controversy.

But a little known statutory clause provides that same deadline extension to foreign governments, agencies, and instrumentalities, too. I give you 28 U.S.C. §1608(d), part of the service section of the FSIA. The extension is simply a matter of right, so in order to avoid any confusion on the issue, I often advise my clients to have the summons language amended. Clerks are usually happy to do so without much pushback.

A few weeks ago, however, the clerk in a sparsely populated district (identity withheld to protect the innocent) flatly refused to change the text, and said we’d have to get the judge to order her to modify the standard form. More motion practice, more delay, and more irritation for the person wearing the shiny robe and wielding a little wooden hammer…

Seems a bit silly given the explicit text of §1608(d), and given that S.D.N.Y. and D.D.C. both do it as a matter of course, providing already-modified forms on their websites here and here. But Foley Square and 333 Constitution Avenue N.W. see more FSIA cases than any other district (foreign embassies abound in both, of course), so it’s not surprising that they provide blanks at the outset. It’s also not surprising that clerks out here in The Flyover* would be unfamiliar. They just don’t see this stuff very often. But if you run into this situation, just show the clerk this post (it just shouldn’t take more motion practice to get this stuff done) and maybe you’ll save everybody– including the clerk!– a bunch of hassle.

* Sure, dictionary.com considers the word just an adjective. Here in The Flyover, it’s a noun. And we don’t mind, frankly, because anybody who uses the term derisively is best advised to stay where you are, because we don’t appreciate your attitude toward our home and might be prone to not be nice to you.

1678113673-7203-393-lxb_photodhz-Nez_fgolxb_photo-
Erik Mclean, Unsplash

Among the most frequent questions we field: “Hey, Aaron, what what would you charge me to serve a defendant in (pick a country)?” or some variant thereof.

It’s usually a tough question to answer any other way but “I can’t say just yet.”

Unfortunately, asking what it would cost to serve somebody in XYZ is a bit like asking your local Toyota dealership how much a car costs– there are far too many variables in the equation for us to simply throw out a price tag. Some examples:

Continue Reading How much does it cost to serve a defendant in (insert country name here)?

We’ve noticed an uptick recently in product liability claims and patent infringement suits against foreign automakers– in particular the German luxury car manufacturer Mercedes-Benz and its U.S. subsidiary. The question that arises daily around here, and the question that drives everything we do, is this: how do we get these guys served?

Continue Reading How to Serve Mercedes-Benz

(Author’s note: go back and watch Willy Wonka and the Chocolate Factory.  Treat yourself.  No, not the Johnny Depp version– the one starring the late, great Gene Wilder.)

A few years ago, I posted The Hague Certificate– all the proof you need, a fairly straightforward missive that outlined the normal instrument that proves up Hague service (Article 5 service, that is), and the solid precedent set down by Northrup King v. Compania Productora Semillas, 51 F. 3d 1383, 1390 (8th Cir., 1995).  In short, if you have a defendant served pursuant to Article 5 and the foreign Central Authority issues a Certificate to that effect, you’re solid.*  The court doesn’t get to parse through the record to make sure it was done in accordance with the foreign country’s procedural rules.

The Certificate is your Willy Wonka Golden Ticket.  Now, in isolation, the Certificate doesn’t tell the court everything it needs to know, so some context is needed, but some Central Authorities go a bit overboard with their context.  Some others demonstrate that their bureaucrats are simply creating extra paperwork to justify their own jobs.

A word of caution: don’t file all that extra stuff with your Certificate.     Continue Reading Don’t file the extra stuff that comes with your Hague Certificate.

During our road trip on highway 66 we stopped at a local shop and I spotted in a dark corner this old map with pins and currencies left by visitors from all over the planet.
Christine Roy, Unsplash

I don’t have an FAQ page on this blog, but if I did, the very first question out of the gate would be “How do I cut that translation cost down from $50,000 to a more manageable figure?”

It really is a shock to a litigator’s system– especially that of a patent litigator– when they’re told that the documents they have to serve in Germany or China or Mexico will cost them five (or six!) figures to translate. Those countries’ declarations to Article 5(3) of the Hague Service Convention require translation. Period. And most other countries require it too, with no exception or variance as to what gets translated and what doesn’t. It means everything.

Continue Reading The time to save money on translation is *before* filing.

Photo by Dave Adamson on Unsplash

Litigation is a bit like football– the helmet & pads version we play here in North America, not the one where the use of hands is forbidden (seriously, guys?).

Much of the academic side of the game is in strategy, thinking fifteen minutes down the road, managing the clock, keeping your QB protected and your linemen well-rested.  But sometimes, there’s just no strategy possible, like when three seconds are on the clock, it’s 4th and goal, and you’re down by 5.  There’s precisely one acceptable move, and that’s simply to go for the end zone.  There’s a whole lot of comfort in that.  Even though it might seem like a daunting situation, all you can do is just execute.

In much of what I do, there’s simply no strategizing possible.  There’s precisely one acceptable move, and that’s a Request pursuant to Article 5 of the 1965 Hague Service Convention.  Many HSC member-states are what I like to call “Five-O countries” because they object to Article 10 alternative methods, so you’re left with Article Five Only. There’s a whole lot of comfort in that.  Even though it might seem like a daunting situation, all you can do is just execute.

Continue Reading Five-O countries and the (counterintuitive) comfort of zero options.