
From time to time, I’ll have a client ask about the most appropriate way to advise the court that a Hague Service Request has been submitted to a foreign Central Authority, in the interest of avoiding a benchslap due to long wait times. My stock answer: don’t.
Don’t do it because you’re just inviting unnecessary scrutiny. Be ready to answer the question if it comes up, but know that it very frequently doesn’t come up. If you’re in federal court, especially S.D.N.Y. or C.D. Cal. or (the big ones for IP) W.D. or E.D. Tex., trust that the court has been down this road before– routinely– so they get it. If you do happen to receive one of those automated 90-day nastygrams directing you to show cause for your highly disrespectful flouting of all expectations good and holy, respond then. It seems counterintuitive, I know, but being proactive here is not a good idea. Being reactive, quickly and forcefully so, is the best course of action. Hear me out on two scenarios:
Scenario 1
Larry Litigator has a defendant in China. He calls me one bright Tuesday morning and asks if my firm handles the Hague Service Convention (ahem, yes, exclusively). He hires us to check out the defendant’s identity and whereabouts, get the summons and complaint translated, and file the appropriate request with the Central Authority in Beijing. My staff sends Larry confirmation of the filing, along with my reminder that things just take longer over there, but also that he has a friend in Rule 4(m)— so the court can’t ding him because it could be a year or two before Chinese authorities send us proof of service. Larry files an advisory with the court indicating that he’s done his job and gotten the procedure underway in the People’s Republic of China, and now he has to wait, and by golly, he doesn’t know how long.
Three months later, he gets a show cause order demanding that he justify his failure to serve the defendant within the allotted time frame. Somebody at the court didn’t read all of Rule 4(m), so they don’t know the ordinary deadline goes out the window. Still, because Larry told them what was going on earlier, their curiosity is piqued. Larry is scared into throwing himself on the mercy of the court, and promises to provide updates every 90 days until proof comes back. Larry now has to file the same “gee, Your Honor, we still don’t have anything back” advisory. And he’s created a whole bunch of unnecessary work for himself– work that still neither satisfies the court nor speeds the docket along. Halfway through the second year, proof finally arrives and the judge still looks at Larry wondering why he didn’t make this whole thing go more quickly.
Scenario 2
Laura Litigator has a defendant in China. She calls me one sunny Tuesday afternoon and asks if my firm handles the Hague Service Convention (ibid). She hires us to check out the defendant’s identity and whereabouts, get the summons and complaint translated, and file the appropriate request with the Central Authority in Beijing. My staff sends Laura confirmation of the filing, along with my reminder that things take longer over there and she has a friend in Rule 4(m) and the court can’t ding her because the Chinese authorities take so long… in short, Laura, relax. It may happen slowly, but it’ll still happen.
Laura goes on with her life, content in the knowledge that proof is coming eventually, and that she might even know it’s done before I do (completely normal, that). At the 90-day mark, an nasty email pops into Laura’s inbox from the clerk’s automated system. “It’s been 90 days and you have failed to serve your defendant. Explain yourself or your case will be dismissed.” Somebody at the court didn’t read all of Rule 4(m), so they don’t know the ordinary deadline goes out the window.
Laura files a responsive pleading laying out the steps she’s taken– hiring us being the first step– and showing that she got the Request on file in Beijing well prior to the 90-day mark. She advises the court that she’ll prove service as soon as the Chinese government finishes its work, and she can provide no updates until that happens. Oh, and you guys in the clerk’s office ought to read all of 4(m). Just sayin‘. We’ll know when we know– and if you can think of a way to get the People’s Republic of China to do your bidding, I welcome suggestions.
Three months later, another automated nastygram pops into her inbox and she simply replies, “hey, did you guys ever read 4(m)?”
So who’s happier?
Laura.
Laura is happier.