Quite possibly the coolest national flag in the western hemisphere.  After all, Maserati apparently adopted in for its logo…

We aren’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the Barbados is subject to the strictures of the Hague Service Convention, regardless of which venue is hearing the matter.   Barbados gained its independence from the United Kingdom in 1966, though it remained a member of the Commonwealth of Nations, and fully implemented the Service Convention just three years later.  As of today, Barbados is a Republic, but still a member of the Commonwealth, and still home to a pop mega-star called Rihanna (and her umbrella).*

And still, nothing has really changed in the application of the Hague Service Convention– it’s simply about time I posted something about this tiny island nation and the way they handle service of U.S. and Canadian process.  Some background is in order, if you’re so inclined…

Now for the nuts & bolts aspect of our show:

Article 5

  • Translation: Barbados makes no declarations to Article 5(3) of the Service Convention. As a former British Colony, English is the operating language, so game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • 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 from submission to return of proof.

Article 10

  • Barbados does not object to service via Article 10 methods.
  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available under Article 10(b)/10(c).

Central Authority information for Barbados and for the other countries in the treaty—can be found here.  Pretty straightforward stuff down there; not a lot of fanfare, if you’re careful and complete the right paperwork.  Oh, and a 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.

* Ahem, that’s The Right Excellent Robyn Rihanna Fenty… who was named a Barbadian National Hero in ceremonies marking the island’s transition to Republic status last night (11/29/2021).

 

An iconic Shell station in Winston-Salem, North Carolina. David Bjorgen via Wikimedia Commons.

Reports the New York Times this morning:

Shell proposes a shift to Britain, dropping ‘Royal Dutch’ from its name.

The Anglo-Dutch energy conglomerate will apparently become just Anglo in the coming months, which begs the question… how do we serve the company when it’s sued in a North American court?  Simple answer: effectively the same way we’ve been doing it previously, but perhaps in a different place.

In most U.S. and Canadian jurisdictions, current practice allows for Shell to be served in either London or The Hague, with a similar treaty regime covering both.  Article 10(b) of the 1965 HCCH (Hague) Service Convention allows plaintiffs to effect service by directly engaging either a Dutch gerechtsdeurwaarder (bailiff) or an English solicitor (who in turn instructs a private process server).  The only difference in practice is that the Dutch operate under a civil law system while the English are common law.  That truly has little bearing on how the company gets served under Article 10(b).

So what happens when the company drops “Royal Dutch” from its name and officially moves its mother ship to the foot of the Millennium Eye?  Only one thing… my gerechtsdeurwaarder doesn’t get to serve it anymore.  Plaintiffs still have a fairly straightforward road to service.  But it remains critical to name the company correctly… Royal Dutch Shell plc will likely just be Shell plc in the coming year.

I’m older now than George Blanda was in this picture.  This is in his third decade of pro football. (L.V. Raiders archive.)

A couple of years ago, in The Before Times, the leadership of the National Docketing Association asked me to speak at its annual convention in Denver.  For those unfamiliar, the NDA is a fantastic coalition of court clerks, attorneys and law firm staffers who, simply put, make sure the trains run on time in the world of litigation.*  I’ve had the good fortune to work with many NDA members over the years, and I love Denver anyway, so it was an easy yes answer.  Thinking I’d give my stock CLE presentation about the Hague Service Convention and the minefield that lies before lawyers and law firm staffers whose opposing parties happen to be overseas, it would be easy to put an hour-long presentation together.

“No, Aaron, not a CLE session.  We want you to do the keynote.”

Um… huh?  [I’m eloquent that way.]

“The keynote, stupid.  The main event.  The big enchilada.  You know– the one where everybody is in the room?”  [I paraphrase for effect.  The NDA’s e-board is nothing if not professional.]

Well, that’s a different matter entirely, I thought, knowing I couldn’t get out of it.  These were clients, after all.

So what in the heck am I going to talk about?

I simply considered my audience, and it dawned on me.  Without skilled staff– or lawyers who pay close attention to detail– a case never even starts.  Sort of like a football game doesn’t kick off until, well, the kickoff.  And that requires somebody with both a monster foot and pinpoint precision.

Unless we’re talking about the Texas State Armadillos, the most maligned and ridiculed member of any gridiron squad is the kicker.**  It’s occasionally some guy from the former Soviet Bloc who couldn’t make it in the Premiere League, or he’s not the right size to play any other position, but he doesn’t do much else besides kick (the great George Blanda excepted– he was a kicker and QB).  He doesn’t get tackled, and he might actually hold the ball once a year.

In your average law office (does that even exist?), the docketing clerks and the paralegals don’t get much sunlight because it’s all shining on the litigators.  These people are unsung because their name isn’t on the door and they never step in front of a jury.

But of the top scoring leaders in NFL history, you have to go past the top twenty to get to a non-kicker.  What does that tell you about their effectiveness, their value?

Extend that analogy a bit.  What does that tell you about the clerks and paralegals in your firm?

Same answer: without some very talented people at those positions, you put fewer points on the board– if the game ever starts at all.  A kicker focuses on just one critical portion of the spectrum that is a football game, just like a clerk or para focus on a critical set of issues that lawyers, let’s face it… don’t.

So a little message for law firm staff: what you do… matters.  It matters just as much as the research and drafting and eloquent argument that your attorneys bring to a case.

And two takeaways for attorneys here:  (1) don’t get a big head– your support staff can make you or break you.  (2) Remember that, if you don’t pay attention to the minutiae of procedure, you can forget about collecting a judgment and making your client whole.

* It’s actually more staffers– para’s, LA’s, clerks– than lawyers, and that’s a good thing.  Staffers worry about deadlines and proper filing formats (procedural), while lawyers so frequently get hung up on the nuances of argument (substantive) that they forget timelines and font sizes– to their detriment.  I happily live in both worlds– yes, I’m a lawyer, but my bailiwick is procedural.

** Good luck finding the 1987 SNL clip “We Are the Kickers.”  Introduced by Walter Payton, the sketch lampooned the hell out of these guys.  It was funny, it was offensive, and it’s been scrubbed from the internet.

 

Another hat tip to the great Jan Stenerud, who is both a Norseman and a Kansas City transplant.
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.