This is a reboot of a post from last year, but it bears repeating: summonses in bankruptcy adversarial proceedings must be modified if they are to be served on a defendant located abroad.

The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court.  Perfectly logical.  And Rule 7004 governs how to serve the summons.  Again, logical.  But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.

The reality is that a bankruptcy action is going to be served under Rule 4 in most cases.  That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad.  Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it.

Bankruptcy lawyers are under no heavier a burden than the rest of us.  No difference in how you get service effected, whether a bankruptcy adversarial proceeding or a personal injury suit.  There’s a problem, though:  proper Hague service takes a while— a very long while in many instances– and bankruptcy summonses must be answered within thirty days after issuance.  Not a big problem here at home.

But, hang on, says the adverse party.  It is a problem here at home.  You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer? 

Well, no, not exactly.  The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e).  Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).

But 7004(e) applies only within the United States.  The seven-day rule doesn’t apply when serving abroad.*  So how to get around the expiration?  Simple.  Just modify the language.

To be fair, any adversary is going to need two or three weeks to properly answer a complaint.  This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?).  Simply put, though, if you have to serve an adversary outside the United States, it ain’t gonna happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.  But if it’s not done in either of those two countries, forget it.

Tell the Clerk that the summons (Form B 250A) must set a deadline based on the date of service— not based on the date of issuance.  Best bet: go 21 days, just like you’d have in a regular AO440.  It doesn’t have to be an overly complicated edit, and it doesn’t have to alter the substance of the document itself.  Seriously, the picture above shows it all.

Woman in Gold, Gustav Klimt, 1907

Here we go again.  Every few weeks, somewhere in these 50 states, a case gets dismissed for lack of proper service on a foreign sovereign (or foreign state instrumentality).  There’s not a single rule, statute, or customary practice that ought to tell a plaintiff that just dropping a summons & complaint on a receptionist’s desk at a foreign diplomatic mission is effective. Write this down…


Unless they’re exceedingly dense, opposing counsel is going to 12(b)(5) the hell out of your claim.  Very likely after Rule 4(m)’s 90-day deadline passes (uh oh).  Your client will be less than amused.  So don’t even try.  No, really.

Late one afternoon, on a plane ride home from Italy, I clicked into that high-tech touchscreen (you know, the one that works sometimes) on the seatback in front of me.  I’ve always had a bit of a crush on Helen Mirren, so I spent a very worthwhile 109 minutes watching Woman in Gold.  It really is an incredible film, depicting a Los Angeles woman’s quest to recover a legendary painting that had been stolen from her family in the early days of the Nazis’ attempt to eradicate the Jews of Europe.

Some five decades after the war, she learns that the painting hangs in the Austrian state museum and, with the help of an energetic young attorney (who looks strangely like the Green Lantern), launches a lawsuit against the gallery that purports to own it.  Because the gallery is owned by the Austrian government, the Green Lantern says process has to be served by sliding the summons & complaint through a teller’s window at the Austrians’ L.A. consulate.  And litigation begins in earnest.

Had I been alone in my own home, I would have emitted a deathly scream unlike has been heard in Kansas City since we dropped the 2014 World Series.  I’m Norwegian, so it would have looked like this:

But… aircraft decorum prohibits such noise when fellow travelers are trying to sleep, so I kept my mouth shut and grumbled through the rest of the movie.  Why the mental torture?


There’s no way in hell that the real Randy Schoenberg got it done that way.*  Not a chance, unless he really was young and green (okay, that I understand) and the lawyers hired by the Austrian government were simply clueless.

If they weren’t clueless, it would take all of seven minutes to draft the 12(b)(5) motion.  And that includes time enough to open and pour a Stiegl to consume upon completion.

In reality, the Foreign Sovereign Immunities Act controls the method of service– and in this case particularly, 28 U.S.C. §1608(b).  That statute, in turn, raises the question of how service is effected in Austria.  Simply put, a Letter Rogatory.  End of options before resorting to diplomatic note.

And because HOLLYWOOD SCREWS UP THE RULES, lawyers far & wide stop short of investigating how to do it properly.  It staggers the imagination.

Seriously…  just do this.

* I emailed the man himself.  Randy, dude, how’d you really do it?  No answer.  I really blame Hollywood scriptwriters for this, in the same way infantrymen curse filmmakers who lack the good sense to hire Dale Dye.

Adare, County Limerick.  Oh, yeah– ask for Chloe at Pat Collins.  But be aware what ye say… all the pubs in Adare are related.  Her cousins, Julianne and Jason, work at Auntie Lena’s down the block.

We’ve been on “vacation” since last weekend.  I use quotation marks because, in all reality, I cannot disconnect completely, as it would be a disservice to my clients– all lawyers who need help navigating the cross-border issues that they never touch on in law school.  Everybody with an active matter knows I’m overseas, and they’re incredibly respectful of my time and circumstance, but I take great comfort from the fact that I can still work no matter where I am.  Peggy is not incredibly pleased when I pull out my phone to answer an email, but she understands the challenge.

Just today, a colleague shot me a question that I was able to answer– quickly and definitively, on my phone– from pub in County Limerick, Ireland.  Ponder the practice of law today versus the practice thirty years ago.  Answering that question would have taken either several days or a whole bunch of dollars– probably both, and definitely, not from Pat Collins’ Pub.

But in a matter of minutes, I was able to tell her exactly what she needed and, hopefully, save her client several hundred dollars.  It cost me all of seven cents, thanks to the miracle of the Internet.  I called her and said, “yeah, no worries– do XYZ and you’re fine.”  Not a chance I could have done that in the 1990s.

Our economy is no different– we are part of an interconnected world.  An inextricably linked world.  Personally, I like that.

The Ha’Penny Bridge, across the River Liffey, Central Dublin.

This morning, Peggy and I awoke in Dublin, the capital of the Republic of Ireland.  I’m incredibly fortunate to have traveled extensively since I was a young kid (Army brats never really shake the wanderlust), but until yesterday, the Emerald Isle was an unchecked box on my list.  I’ve been waiting decades for this, and it does not disappoint.  We’re here not only to see the sights, but also to build relationships with colleagues who serve Irish defendants for my clients.  It’s a great mix of business and leisure.

Throughout Dublin, there’s an undercurrent of revolutionary spirit, even a century after the Easter Rising and the subsequent advent of the Irish Free State.  Homages to Daniel O’Connell and Michael Collins and Wolfe Tone are everywhere, much as Washington and Jefferson and Franklin abound in the District of Columbia.  Atop the political history is a layer of culture and vibrancy– and even refinement– that make Dublin truly a world-class capital, even though it governs a country far smaller and less populated than my home state of Missouri.

On the downside, Dublin is expensive, it’s touristy, it’s aged, and it’s a bit grimy.  Just like every other big city.  Hard to criticize a major metro for any of those things when it has so much else to offer.

But the most striking thing I’ve noticed about Dublin is its distinct multicultural atmosphere.  This is, as far as I can tell, among the most European of European cities, perhaps second only to Brussels.  In a few hours’ time, I heard a dozen different languages and encountered people of every hue, faith, and economic class.  It’s not a stretch to predict that, following Brexit, the Celtic Tiger will awaken once again and make Dublin the English-speaking capital of a renewed Europe.

That’ll be exciting to watch.

Aside: I highly recommend the concept of VRBO– Vacation Rental By Owner.  It’s really a cross between AirBnB and a traditional hotel.  For about the same cost as a standard double room in a Hilton or Intercontinental, we have an entire apartment in Smithfield, just steps away from the Jameson distillery (they don’t make whiskey there anymore, but that’s beside the point!).  If you have occasion to visit Ireland’s capital, check out Dublin City Rentals.  Ask for Séamus.  He’s a good fellow.  (And his name is Séamus— there is no name more Irish.)

No, really.  When you travel to Italy, don’t just follow the tour books and stick to Florence & its environs– wonderful though they are.  For just as much Italian culture and scenery (for a significantly lower cost), try Umbria.  Right next door, and only a smidge less enticing than its more famous regional neighbor to the west.

Last fall, on a CLE Abroad Program hosted by my alma mater, I had occasion to visit Spoleto, a beautiful town south of Perugia, and an easy drive up from Rome.  The people there are incredibly welcoming (and who wouldn’t be, when facing a horde of American lawyers?), the scenery stunning, and the economy… well, there’s the problem.  Italy has had a rough go of it since the Great Recession a decade ago.  And, while not as bad off as their Greek neighbors across the Adriatic, unemployment has stayed chronically high, and towns like Spoleto have really borne the brunt of the downturn.

But if you visit, plan on some of the best food you’ve ever tasted, some of the warmest hospitality, and a heck of a pleasant surprise.

They might even give you a tour of the courthouse, complete with the chance to don a judge’s robe.



NASA photo.

A huge segment of the legal community thinks that international law equals immigration law.  My local bar association even conflates the two ideas in its committee structure, which is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.  It staggers the imagination that a profession so concerned with precise language can’t see the distinction.

When somebody asks me about my specialty,* I tell them that I handle “anything that crosses a border.”  Naturally, they respond with “oh, great, I have a neighbor whose cousin’s housekeeper is being deported– I’ll send her your way.”

No.  Just… no.

So now, I always follow “anything that crosses a border” with a clarification: “paper– not people.”

Technically, I don’t practice in International Law– what I handle is Transnational, but I’ve abandoned the fight on that distinction.  The point is, I don’t handle immigration.  But I have a whole bunch of friends– spectacularly talented advocates– who do handle immigration, and I wouldn’t want to touch their specialty with a ten-foot pole.**

Even at that, it cannot be said that there’s such a thing as “immigration law”.  As I found out recently, it’s a bifurcated discipline, so it’s critical to identify the client in order to determine which kind of immigration law the attoney handles:

  • Business immigration lawyers serve business clients.  When they apply for an H1B visa, it’s on behalf of the employer– not the immigrant.
  • Individual & family immigration attorneys serve individual immigrants & their families– and even then, there are sub-specialties.

What I do is outward looking– cases originating here in the U.S. and Canada, dispatching procedural issues abroad.  I cannot prevent your neighbor’s cousin’s housekeeper’s deportation.

* Acknowledging that the words “specialty” and “specialize” get lawyers into trouble with their respective disciplinary authorities, I contend that such trouble is unwarranted.  If a guy says he specializes in traffic law, but doesn’t know how to plead down his wife’s speeding ticket in Kansas City Municipal, then they should get him on misrepresentation and false advertising.  Don’t smack down a family law attorney who says she specializes in divorce and custody disputes when she actually does so.  The simple linguistic fact is that we do specialize.  We have to.  Lawyers who don’t specialize are dead in the marketplace– a jack of all trades is a master of none, and clients need mastery.  Don’t ever come to me with a complex tax question or an estate planning issue or criminal defense matter (et cetera) unless there’s a cross-border element to it.  Even then, I’m a support guy– not primary counsel.

** One sub-specialty that skirts what I do:  refugee & asylum law– an area to be described later, in a different post.  But it’s only a very small portion of the immigration universe.

Thirty years ago today, the Nine Wise Souls heard oral arguments in the seminal case, the kingpin-opinion, the granddaddy precedent, in what I do.  Volkswagenwerk Aktiengesellschaft v. Schlunk, (opinion issued that June, and available at 486 U.S. 694) involved a wrongful death suit against the German automaker and its U.S. subsidiary.  The plaintiff, whose parents were killed in a highway collision, served the German parent company via the subsidiary, which happened to have been headquartered in Chicago at the time.

Now, ordinarily, I argue that you can’t just serve a subsidiary.  The very idea of it tends to disregard the corporate veil.  But Illinois happens to have a statute that allows precisely that– if a foreign* parent has an Illinois subsidiary, then that sub is designated by law as an agent for service on the parent.  On the surface, it might seem that this conflicts with the Mullane doctrine (service must be effected by a means reasonably calculated… to put the defendant on notice, and afford him an opportunity to defend), but it stands to reason that if the sub knows, they’re going to tell the parent.

But the issue in Schlunk was only related to Mullane analysis in part.  Accepting the validity of the statute, Justice O’Connor disposed of the matter pretty quickly…

Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. (…)  (C)ontrary to VWAG’s assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national.

However, if you can’t get the job done here, and you have to serve the foreign national in his/her/its home country (assuming it’s a treaty member), then you have to follow the treaty.  Period.

It’s as good as holy writ today.  In 1988, it wasn’t so certain.**

(If you have an hour, you can listen to the orals here.)


* Foreign is a term of art, and it doesn’t just mean “outside the United States.”  It means “outside this particular jurisdiction.”

** I was a junior in high school at the time.  I was certain about everything.

A blank Hague Certificate. Seriously– this is all there is to it.

What has become known in the United States as a Form USM-94 is a four-page document:  (1) the Request for Service Pursuant to the Hague Service Convention, (2) a blank Certificate of Service, (3) a “Notice” or “Warning” — essentially, a cover page for the defendant’s benefit (which name it carries  is dependent on how old the form is), and (4) a Summary of the Documents to Be Served.  The second page is an interesting animal, because, in a perfect world, you would print the blank Certificate on the reverse side of the Request form, and the overseas Central Authority would complete and return that very page to you.  When that happens, it’s very easy for the forum court to see that the Certificate relates to a particular Request.

Most of the time, though, it doesn’t happen that way– like I said, in a perfect world.  Nine times (or more) out of ten, the Central Authority will simply generate its own Certificate in Microsoft Word, typing in the details rather than handwriting them on your blank.  This is at once a blessing and a curse.

It’s a blessing because the completed detail is actually legible, and that can never be a bad thing.  In all cases, typed text > scribbled scrawl.

But it’s a curse because, very frequently, they don’t actually reference the Request you sent, they don’t indicate a case number or caption or parties’ names, they don’t actually name the defendant, or…  see my point?  Oftentimes, the Central Authority says the documents (which ones?) were served on February 19, 2018 at 1234 Main Street in Winchestertonfieldville, they were handed to Pat Smith– Receptionist (um, who?), and service is complete.  With much love and admiration from the Central Authority (STAMP), on March 19, 2018.

Uh, okay.  Thanks?

The Certificate is then stapled to a 37-page sheaf of documents in a language you can’t read, themselves stapled again to the duplicate copy of the Request and service documents, which you provided.– including the completely ignored second page.

Don’t be alarmed.  This is normal.  Just be careful to scan the right information before you e-file.  That is, make sure that whatever you upload to the court connects the dots between the Certificate and your Request.  Beyond that, the other documents are superfluous.  Yes, the judge may want to see them, but they are legally unimportant, because the court shouldn’t look behind the Certificate to make sure the documents were served in accordance with the foreign jurisdiction’s law.  The Certificate itself is like Kevlar– bulletproof– so long as it is based on a valid request (and defense counsel should ALWAYS question that).

Jimmy Sellers was my best friend in the sixth grade– and best man when Peggy and I got married.  We never went to an art museum in 1982.  [This is how we would have forged the thing.  Both of our moms were NCO wives, so we would have gotten smacked.  Hard.]

Alternate title:  How to Get a Judge to Sign a Letter Rogatory.

It’s actually quite simple.  Rather like getting your mom to sign your permission slip for a sixth grade field trip to the art museum.

No, really.  There’s not a whole lot of fanfare in asking a judge to sign a Letter Rogatory for service in a non-Hague country.  Although nothing really mandates its use,* this old-fashioned device can be critical to enforcing a judgment down the road.  Just mailing process to serve is usually a bad idea, and professional process servers don’t exist in civil law jurisdictions– at least not in the way we comprehend them in the common law.

If you might have to ask an overseas court to enforce a judgment against a defendant served in, say, Taiwan or Singapore, one of the first things that court will examine is how you served process.  The Letter Rogatory removes all doubt that service was effected according to the law of the jurisdiction where process is served.

Unquestionably, it is natural for a practitioner– especially a newly minted associate– to feel a bit of trepidation about the procedure.  Relax.  This instrument is a pro forma device, and courts understand its validity, because they use them to request judicial assistance from state to state.  Missouri judges send Letters Rogatory to Alabama and Oregon from time to time.  It’s not a daunting task, as long as counsel explains the logic to the court.  That just requires the right vocabulary, in a Motion for Issuance of Letters Rogatory:

  • Motion:  “Hey, judge, we need (XYZ) and would appreciate it if the Honorable Court would grant our request for (XYZ).”
  • Issuance:  The judge signs the Letter, making it an officially “issued” document.
  • Letter Rogatory:  Just a note from one judge to another, asking for a little help– for service of process, compulsion of evidence, the chance to have dinner with the Chief Justice of the Constitutional Court while the American judge is in Paris on a CLE adventure (hint, hint)
  • One more term worth noting:  Execution of the Letter.  That’s what the foreign** judge does when s/he orders her/his staff to do what the Letter asks.

Simply another way to keep the wheels of justice turning.  Don’t be intimidated by it.

Unless your mom was intimidating when you asked her if you could go on that field trip in 1982.  In that case, flowers are always good.

* Exception: Austria, at least for now.  Austrian law prohibits service of foreign process by any method that isn’t pursuant to a Letter Rogatory.  For now.

** Foreign is a term of art, meaning anything outside the jurisdiction.  It doesn’t just apply in a “you need a passport to go there” sense.  It can also mean in the “across State Line Road” sense.  French law is foreign to Missouri, but so is Kansas law.  (Around here, we Missourians argue that Kansas is foreign to everything, but that’s all in good fun.)

These are dry cells– not batteries. Far less likely to explode than the lithium ion devices at issue here. (They’re also far less capable of doing the job.) Public domain, Wikimedia Commons.

Back in law school, I marveled at the most prevalent type of case discussed in Product Liability class… exploding pop bottles.*

To hear Allen Rostron (my P.L. professor, now Associate Dean Rostron) tell it, the whole of tort law developed on two concepts:  (1) unfortuitously agitated carbonation and (2) the brilliance of the Honorable Stanley Mosk.

Sure, I exaggerate– fireworks and railroads helped— but I still can’t get over how much the field of law developed along with the modern bottling industry.  Today, injuries from ruptured beverage containers are a rarity, in large measure due to the plaintiff’s bar (the same goes for just about everything else in the modern world that used to hurt people and doesn’t anymore).  At the base of product liability law is a very simple thought process:  “Hey, if I buy this thing, will it cause me severe bodily injury?  No?  Great!  Take my money.”

In an excellent post over at the Product Liability Blog, my Wisconsin colleague Rich Schuster discusses E-Cigarette Explosion Cases and Legal Practicalities.  Setting aside the debate about the respiratory risk of “vaping”, Rich offers that “the need for more power in smaller packaged batteries, coupled with questionable supply chain practices marked by non-existent or inadequate quality assurance testing, can lead to the unintended consequence of battery cell explosions.”

Yes.  Explosions.  The things blow up.

Let’s consider the vape user’s subconscious analysis:  Hey, if I buy this little device that will efficiently administer a legal drug of my choice, will it blast a hole in my leg?  No?  Great!  Take my money.

Of course, we don’t actually ask the question.  But it’s still part of the analysis, and it’s at the heart of the legal calculus in defective product cases– our expectation of a safe product is the foundation of the claim.  Users of e-cigarettes often have a tough time gaining sympathy from their fellow citizens when the product inadvertently blows up, and that’s awfully unfair.  But change one word in that equation and the kindness flows– instead of e-cigarettes, how about phones?

Phone users meet with great sympathy from their fellow citizens when the product inadvertently blows up.

It’s essentially the same technology involved.  A dense mass of various metals and potentially volatile liquid chemicals jammed and sealed into as small a compartment as possible, for the purpose of generating a sufficient electrical current to power a consumer device.  Phones, vapes… really, they’re the same thing.  And why?

Because when you buy them, you naturally expect them to NOT BLOW UP.

Phone batteries don’t have quite the same supply chain issues as e-cig cells, and they need a smaller amount of current over a longer period of time, but a battery is a battery in the mind of the reasonable person.  You expect them to generate the amperage and voltage you need over the expected life of the device, and then… it just fades away.  It does not turn into a violently expanding ball of flame.

So, what in the heck does this have to do with the Hague Service Convention

Well, as Rich in Wisconsin puts it, “Manufacturers of e-cigs batteries are frequently Chinese corporations with few or no ties to any particular state.  It can be difficult to achieve proper service of process over these companies… (and it) can also be difficult to convince clients to incur the costs to even attempt service… .”

He’s absolutely right.  The costs are high, although there are ways to mitigate them, at least a bit.  But if you do sue the vape shop owner and the manufacturer’s U.S. distributor and you don’t bring that manufacturer into the case, you can count on the American defendants pointing the finger right back at China.  Especially in states with innocent seller laws, you may get nowhere without having the manufacturer haled in.

Likewise, if you sue the store where you bought your fancy Model TK-421 smartphone (it blew up, of course), don’t you think the merchant might demur, opting to pin the blame on the Korean or Chinese or Vietnamese company that made the thing?  Ibidum.

Whether it’s an exploding e-cigarette battery or an exploding phone battery, the suit goes nowhere unless you properly serve your offshore defendants.  So do it right the first time— don’t simply wait until you’re past zero barrier.


* In the Midwest, we call it pop.  Get on board with that if you want to stay here.  If you call sweet, fizzy soft drinks “soda”, you’re wrong.  Soda is white powder in an orange box, and its job is to keep the fridge from stinking.  If you call it “Coke” you’re doubly wrong, and should seriously consider your profession, because… precise language, counselor.   “Soda pop”… well, you get a pass, because, at least you’re trying.

**  Seriously, you’re telling me that sucking that ionized chemical cocktail into your lungs isn’t horrendously bad for you?  Pull the other one.