[Another “Big Tony” lesson here, for those of you who are familiar with him from prior posts. This has really become a more prevalent thing lately, and I have to address it.]

With pretty high frequency, we’ll determine on the eve of sending a Hague Service Request that our client (almost invariably plaintiff’s counsel) has listed an address in the summons that doesn’t jive with the address indicated in an entity defendant’s state registry. We always recommend going with the registered address because that’s what Big Tony, my BusOrg (called simply Corporations back in the day) professor in law school, told us to do.

That’s the entire point of a resident agent,* he said while describing Missouri’s statutes on corporations, LLC’s, LLP’s, etc., so don’t get cute– just serve the agent. (He was also the guy who insisted that litigators shouldn’t even bother to file if they couldn’t get the defendant’s name correct.)

Big Tony was then, and remains today, a prophet.

Eight times out of ten, counsel agrees with our recommendation and says “okay, go where the registry tells you to go.” Perhaps a tenth of the time, there’s some procedural reason to stick with the summons address, so we proceed cautiously, with the caveat that it might work or it might not.

But then there’s that last time out of ten, where our client directs us to stick with the address they have for some other reason. So we have to ask… where’d that address come from?

• It’s the service address the defendant indicated in the contract. Well, okay, that’s plausible, we say. If service fails, you can point to that when the judge gets irritated that you have to tee up another long wait. Although… how old is the contract? Has the defendant been acquired or merged with someone else? And isn’t that the contract they allegedly breached? Lots of issues still remain. But you’re the boss.
• It’s the address the defendant indicated in a responsive pleading in another case. Ibid. Caveat ibid.
• That’s the address on the defendant’s website. Um, no. Just… no.
• The company’s SEC Form F-4 says so. Or its SAFER Company Snapshot. So, you’re relying on self-reporting?
• That’s where opposing counsel told us we should go. Whoa– tap the brakes, there, pal.

The last three set my teeth on edge. Hear me out.

That’s the address on the defendant’s website.

So what?! That could just be a customer service office. It could just be the street address of the company’s loading dock, while the hive mind is housed around the corner. Sure, if they expressly say it’s their headquarters, perhaps, but even that is tenuous. Who do you go to at the HQ? Hand everything to to Timmy the Mailroom Clerk? Force your way past security to reach the CLO? Yes, state rules may give you the option of headquarters or registry, but why bother with a maybe when a sure thing is right in front of you?

Bear in mind that websites are marketing devices, nothing more. They are not expressions of hard & fast legal reality (think puffery from Contracts when you were a 1L). How many websites out there can’t even get the entity’s legal name correct, much less the entity’s legal address? Hint: LOTS. Because the kids in the marketing shop don’t run things by legal before they post.

Best example: you don’t serve General Motors at the Renaissance Center in downtown Detroit. You don’t serve Ford at the River Rouge complex out in Dearborn. You serve them at their respective registered agents’ offices in Wilmington, Delaware. Why? Because they can’t weasel out of service there. That’s the whole point of having a registered/resident agent.*

Or how about Stellantis, the big multinational that came about when Peugeot bought out Fiat-Chrysler? If Stellantis is a defendant, you definitely don’t serve them via Chrysler (technically now Stellantis North America) in Auburn Hills– another Detroit suburb. You serve Stellantis N.V. at its registered address in Hoofddorp, Netherlands.**

That’s what the defendant listed in its U.S. government filings.

Okay, fair enough, but who completed the filings? Did they indicate the compliance officer’s address, or general counsel, or the CEO’s office? It’s not a 100% reliable indication. To be sure, if we can’t even find a registry in Notamerica,*** this is unquestionably the best source we have, but if the Notamerica corporate registry conflicts with the U.S. government filings, which one is more authoritative under Notamerica law?

That’s where opposing counsel told us we should go.

Oh, where to begin…

Look, I get it. You want to trust a colleague and play nicely in the sandbox. Strive mightily, but eat and drink as friends… I’ve been incredibly blessed to have adversaries I respect, admire, and work (and eat and drink) well with.

But if opposing counsel were so forthcoming with correct (or at least, not misleading) information, why wouldn’t s/he simply file an appearance and get on with it? More to the point, if the defendant were that forthcoming with its counsel, why wouldn’t they simply waive? You wouldn’t need Viking Advocates to sail out into Notamerica to plunder. You wouldn’t need to hand us a four- or five-figure check (occasionally, six!) to go out and get those defendants served.

Wrapping it all up.

So back to Big Tony. Not your typical law professor, Tony had been to the wars. After thirty years in corporate litigation, he had an opportunity to teach would-be lawyers the lessons he’d learned over the decades. Chief among the lessons: pay attention to who the defendant is, and make sure you tag them in the right place. For the record, neither of my Civ Pro professors ever even mentioned service of process (and I chided them for it in a CLE lecture one fall morning in a Paris conference room)… but Big Tony did.

He was emphatic about getting it right the first time. So if you’re presented with (1) an authoritative official source and (2) a plausible-but-unofficial source, your best approach is to go with Door #1.

* Important to note is that registered agents just aren’t a thing in most of the world. Outside North America and the Caribbean, entities usually just have registered addresses.

** By coincidence, Stellantis’ Hoofddorp headquarters is its registered address, so nothing to quibble about. You just can’t hit them in Michigan.

*** That doesn’t mean the entity doesn’t exist. Many countries don’t even have a registry, Mexico being our biggest problem child. It just means we have no choice but to rely on the U.S. government source.

[Yes, this story is relevant to litigation. I promise.]

Between us, Peggy and I have four nephews– three by biology and another by circumstance of life. All four of them are on the verge of adulthood, and all four played a lot of Minecraft when they were on the verge of adolescence. I mean a LOT of Minecraft. No, really– we’re talking freaky amounts of time playing this game that only makes me want to go lay down so my head will stop spinning.

I didn’t realize just how deep they were into the abyss until I noticed one of them watching YouTube videos of OTHER KIDS playing Minecraft.

“Hey, whatcha watchin’?”

Minecraft.

“I thought that was something you played. Y’know, like Atari?” *

Go away, old man.

“So… you’re watching Minecraft instead of playing Minecraft?”

Yes. Go away.

“You’re watching some other dweeb play the game that you yourself play.”

Yes. Go away.

[What can I say? He was surly at 12. And a dweeb. He’s still a tad surly at 20, but I’m proud of the man that he’s become, regardless.]

“I don’t get it, D. Why would you watch some other… forget it.” As I walked away, shaking my head.

You know a video game is addictive when a kid watches somebody else play it. For hours.

Now into court comes a parade of parents, suing the makers of various video game platforms for failure to warn them of the dangers posed by the likes of Minecraft, Fortnite, Roblox… all far more sophisticated and intricate than anything we could have imagined back in 1980 when they told us that Pac Man would rot our brains by 1982.

It’s the sophistication than puts parents at a disadvantage; the games are designed like Vegas casinos. No clocks, no natural light, no sense of the passage of time, all so the player stays in it. There’s a reason we don’t let seventh-graders play slots. And yet…

So who came up with Minecraft? An outfit called Mojang Studios, now a Microsoft subsidiary and Microsoft’s co-defendant in dozens (if not hundreds) of suits nationwide. If it’s going to be sued, it’s also going to have to be served, and that’s where the Hague Service Convention meets Jason Momoa.

See, Mojang AB (Aktiebolag) is a Swedish company, parked in a lovely little three-story building facing a sinister cliff face in Stockholm (this is the cliff— and now it all makes sense). Sue Mojang in Tampa or Omaha or Denver, you still have to serve it in Stockholm. See here for a rundown on how to do that.

Or just look up at the upper right hand corner of this screen (scroll all the way down if you’re on a phone) and tap us on the shoulder.

* In case there was doubt, I am Atari 2600 Old. And I was an ace at River Raid.

Three years ago I posted “Modify State Court Summons Deadlines. Just do it.” to equip my clients (all lawyers) with the necessary ammunition for an argument with their clerks of court when summonses are to be served abroad. Essentially, I laid out the logic that, if a summons contains language that makes it expire within X days after issuance, that expiry language must be removed, lest it (1) cause a service request to be rejected by a foreign Hague authority or (2) automatically moot the summons prior to service by that authority. Maryland is my big problem child in that regard. Illinois and Connecticut are more than a bit quirky.

Enter our friends in Michigan.

The Mitten State. The Great Lake State. The Motor State. The We-Deserve-a-Super-Bowl-Win State (they really do). The state where a summons expires by rule 91 days after it’s issued.

The language of the summons itself, Form MC 01, isn’t problematic and needs no modification. It contains nothing like the self-immolating text found in most Illinois and all Maryland summonses. (I’m still looking at you, Crabcakes. Seriously, get your act together.)

But while Mich. R. Civ. P. 2.102(D) is very clear, it presents a challenge to parties looking overseas to tag their opponents. In whole:

(D) Expiration. A summons expires 91 days after the date the summons is issued. However, within those 91 days, on a showing of due diligence by the plaintiff in attempting to serve the original summons, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the summons is issued. If such an extension is granted, the new summons expires at the end of the extended period. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses issued under subrule (A) do not extend the life of the original summons. The running of the 91-day period is tolled while a motion challenging the sufficiency of the summons or of the service of the summons is pending.

This is a huge problem when the summons is directed at a defendant abroad, because the odds that it will be served by the 91st day are slim in some places and precisely nil in most of the world. And you can’t simply get an extension on the original summons once it’s already been sent to a Hague Central Authority in Notamerica.* You must ask the judge to issue a second summons, extended out for a year, and then you have to start your Hague Request all over again.

So what should you do to negate the need for a second Hague Service Convention Request, and all the costs that entails?

Simple. Get the first summons on Monday, throw it in your digital wastebasket, then ask for a second one on Tuesday.** The judge is naturally going to look at you like you’re nuts, but explain that, gee, your honor. Aaron says things don’t work over there the same way they work here.***

Expected timelines around the world run from blazingly fast– Ticino, the Italian-speaking canton in Switzerland, once got a proof back to me in three weeks– to glacially slow, India and Mexico being the worst by far. They often take two years (that’s not a typo). But even in faster destinations like Switzerland and parts of Germany, delays still happen, and they’re completely outside your control. In order to ensure your client’s access to justice and promote judicial economy, relate to the judge the expectation that the 91-day limit is all but certain to be blown. That means you’ll be back to ask for another summons anyway down the road.

Way down the road.

* Tip for non-Geography majors: Notamerica is a fictional place, sort of like those silly jurisdictions like “Erehwon” that they came up with in Moot Court. My friends in the immigration bar fight having their clients sent there.

** While you’re at it, pull the second page of the MC 01 — for the same reason you should pull page 2 of a federal AO440 summons. It’s not the appropriate proof.

*** Cite me as an authority at your own peril. Then again, if your judge has a sense of humor show him/her this post. If he/she is grumpy, keep me out of it.

(Author’s note: this isn’t just a problem in California– others dig their heels in, too, particularly in Ohio and Maryland. It’s a state court issue, from coast to coast, but Los Angeles has been the problem child of late.)

For the most part, the work I’ve done in this little niche over the past twelve years has been rewarding and uncontroversial. The biggest frustration I encounter in the nuts & bolts side of my practice is failed service despite our best efforts, because some foreign bureaucrat doesn’t want to do his job. There’s precious little we can do about that, so as long as expectations are managed, even that frustration doesn’t keep me up at night. Lately, though, we’ve seen a surge in rejection of proofs of service by court clerks who just don’t know what they’re talking about. It’s been an increasing problem just recently in Los Angeles County Superior, where I’ve never really encountered many roadblocks.

And yet…

For some reason this summer, the clerk’s office in L.A. has been demanding that we provide a wet ink (SRSLY?) copy of Form POS-010, the standard California proof of service with an inadvertently hilarious epically unfortunate acronym. Sorry to break it to you, folks, but no.

The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid.

For starters, service effected pursuant to Article 5 of the Hague Service Convention is proved up by a specific form– a Certificate— mandated by Article 6. It’s truly all the proof you need, thanks to that pesky old Supremacy Clause. In case you’ve forgotten those two semesters of ConLaw…

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Yep. That one. (Emphasis mine, of course.)

Pretty easy to make the clerk’s argument collapse pretty quickly. Article 5 service is proved up by a Certificate issued by various foreign officials, and the U.S. court must accept it. Period. No debate. Do not pass GO, do not collect $200.

But it gets a little murkier when service is effected pursuant to Article 10(b) because there’s no form of proof prescribed by the treaty. CCP § 417.10 lays out how to prove up service effected within California, and that’s by affidavit. In pertinent part:

(a) If served under Section 415.10, 415.20, or 415.30, by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.

Seems to support our argument, doesn’t it?

Ah, but wait. Keep reading and you’ll find the problem:

(f) All proof of personal service shall be made on a form adopted by the Judicial Council.

Okay, so the clerk isn’t just being bullheaded. But you still have to push back.

The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid. Therein lies the logic behind the affidavit– it fulfills the § 417.10(a) mandate that time, place, and manner of service be demonstrated, but it goes beyond that to demonstrate the proper treaty article in play, as well as the identity of who’s calling the shots. At that, §§ 415.10, 415.20, and 415.30 aren’t specifically applicable to service abroad either, so the applicability of § 417.10 at all is tenuous at best. [To be sure, § 413.10(c) covers service abroad as to method, deferring to the law of the foreign jurisdiction– not as to proof form.]

The net result of insisting on the POS-010 is really just more paperwork on the clerk’s desk– more follow up to do.

Accepting what we provide means less work for the clerk, because the judge isn’t going to come back and query how this overseas effort was legal.

Push back– it’s better for everyone.

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.