A while back, I wrote that removing the self-expiration language in a standard bankruptcy summons is imperative when serving overseas defendants in adversary proceedings. I’ve used that post on several occasions to advise litigators in various state venues to do likewise, where the documents contain text like “This summons is effective for service only if served within 30 days after the date it is issued.”
The same basic logic applies:
If the summons expires by its own terms before we can reasonably expect a foreign authority to get the thing served, we’re wasting everybody’s time– especially the clerk’s office.
On the other hand, if the clerk’s office will simply edit the summons to remove the problematic language, the procedural machine runs smoothly, purrs like a kitten, spins like a top. Sure, it does so very slowly in some places around the globe, but that’s exactly the point to the edit.
Lately, though, we’ve gotten a fair amount of pushback from state court clerks who either (1) need us to give them something to hang their hats on– a legal basis for the modification– or (2) just don’t wanna– and flatly refuse to modify the text. This post is for those clerks. For the record, I happily admit the following:
- Your local rules are carefully drafted to ensure that the docket keeps moving.*
- You have an obligation to follow those rules.
- And of course, 30 days means 30 days.
Look, I get it.
But do you know who doesn’t get it– and more importantly, who doesn’t care? Foreign authorities.
Particularly those in China, or India, or Mexico. Heck, even officials in Canada or England or Australia (you know– countries that actually still like us) are certain to giggle a bit when an American lawyer tells them “my local court rules require you to have this summons served within 30 days** and return proof within 30 days after that.”
That is, they’ll giggle a bit if it doesn’t so thoroughly rankle them that they dump the American lawyer’s entire request packet in a shredder.
Imagine if a U.S. court clerk received a demand from the Amsgericht in Düsseldorf demanding that its request for assistance be executed within a certain time constraint. The U.S. court clerk would laugh and laugh and laugh. Silly Germans.
Honestly, if the roles were indeed reversed like that, you would be howling mad. How dare a foreigner tell us how to do things in our own jurisdiction? How dare they dictate terms?***
Now, I realize that requests for service don’t frequently land on the desks of U.S. court clerks– service is the responsibility of the plaintiff in common law jurisdictions– but in civil law systems, it’s a function of the court. Even in other countries that share our common law heritage, requests for service under Article 5 of the Hague Service Convention are handled by government officials. So if the Clerk of the 16th Circuit Court for Jackson County, Missouri barks orders at the Amsgericht clerk in Düsseldorf, that German is going to be justifiably mad.
So what is the legal basis for the fix? Well, first, we look to why the expiration is there in the first place.
Is the language prescribed by statute or rule? No? Then fix it.
If yes, does the statute or rule provide a safety valve? (I’m looking at you, Illinois… the prescribed language need only be substantially adopted in the summons. And in Maryland, the rule that requires the expiration also says the summons can be renewed upon motion… so just renew it preemptively.) Or is there some presumption in the statutory language that is overridden by the Hague Service Convention? If so, there’s no problem fixing it.
Ultimately, if the expiration is just common practice, intended to motivate plaintiff’s counsel to act accordingly, then there’s nothing to overcome.
* Unless you’re in Missouri, where service rules were seemingly drafted by a committee of four year-olds very much in need of a cookie and a nap.
** For the record, in Missouri’s defense, our summonses don’t need such editing. That said, some of our clerks think they can dictate who is authorized to serve abroad. (Hint: they can’t.)
*** I appeared as an expert witness not long ago, regarding my involvement in a failed service request to China (local officials’ failure– not ours). On cross-examination I was asked by the Chinese defendant’s counsel why I didn’t just tell the Central Authority in Beijing that it screwed up, and they should do their jobs better. My response to the attorney, who was actually native Chinese, was “wow, and I thought you might have a better understanding of the Chinese government than the rest of us here.”