Bodo Akdeniz, via Wikimedia Commons.

Add me to the list of those mourning– and lauding– the great Terry Jones (he of nude organist fame), who wanted to be remembered more for his scholarship than his comedic genius.  That term, genius, is bandied about far too much these days, but Jones and his co-conspirators really were so far ahead of their time that they cannot be considered anything else.  True geniuses, all.  Well, except Cleese– he’s just a grumpy old bastard with some talent.  And a very odd gait.

So, Jones… perhaps the most famous graduate of St. Edmund Hall, the Oxford University college that I’ve been fortunate to call my very-temporary home during the past few summers.  I just found out this week that he was a big fan of Chaucer, and wrote extensively about the Canterbury Tales author.  Makes perfect sense, considering the intellectual foundation on which the humor (it was spelled like that on the van!) of Monty Python was built.  On the surface, it was all so damned silly, but even the Mr. Creosote bit from The Meaning of Life had an undercurrent of smartness to it.

Greatest example, and the Python scene that had the most dramatic impact on my life: the Constitutional Peasants scene from Holy Grail.  Those three short minutes made me want to major in Political Science and study the philosophy of government power.  Jones was the guy behind that, and I owe him (and Michael Palin, to be sure) more than you can imagine.  It seems that comedy sketches inspire us as much as sermons and lectures.

I can’t wait to see the grumpy old bastard’s eulogy for the next guy.  (Two down, four to go!)

 

 

Apparently, a normal chest x-ray.  I have precisely no base of knowledge to refute that conclusion (I haven’t gone to med school).  Image credit: Yale Rosen, via Wikimedia Commons.

I fielded a phone call in the wee early hours this morning (I was already up and working) from a fellow with an overseas issue.  He said he needed a some help with the Hague Convention (there’s no such thing as “the” Hague Convention), and could he pick my brain for a few minutes.

Sure, I said, but it was apparent right at the outset that he lacked the necessary self-loathing to have ever gone to law school.  That always gives me pause, so I interjected to ask if he was a litigant or the attorney handling the matter.

No, I’m not a lawyer, said he, with a frustrated tone in his voice, leading me to believe that he’d already spoken to a few lawyers with no luck.  I tried to let him down easy and point him toward some professional assistance, but he was having none of it.

See, I don’t give advice directly to litigants on these matters– I can’t— but I will tell those litigants that (1) I’m always happy to assist their lawyer, and (2) if they don’t have one, I urge them to retain someone.  This sort of thing (cross-border procedure) is a challenge even for seasoned trial attorneys, so it’s nigh impossible for “civilians” to undertake on their own.

The lion’s share of folks who contact me are very kind and they understand where I’m coming from.

This morning’s caller was mildly nasty about the whole deal.  He said he’d just use my blog as a template* and grumbled something about (g-d) lawyers under his breath before hanging up on me.  I get similar inquiries a few times a week, most via email, but the lion’s share of folks who contact me are very kind and they understand where I’m coming from.

This blog is and should be a resource for anybody dealing with overseas procedural issues.  That said, its primary purpose is to guide attorneys— not individuals involved in their own lawsuits without counsel.  These folks are called pro se litigants  (pronounced “pro-SAY”), and although individuals certainly have the right to represent themselves, it’s simply not a good idea.  Sure, I’m biased in saying that, much as a physician is biased in telling someone he shouldn’t perform surgery on himself.

Nobody should try to take out their own appendix, and nobody should try to represent themselves in a court proceeding– even for something seemingly minor like a traffic ticket.**  That old adage “any lawyer who represents himself has a fool for a client” is telling.  Even lawyers and their family members*** should hire someone else to assist them, especially if a matter lies outside their expertise.

And in the context of overseas issues, it’s even more critical that a party to a lawsuit have someone trained in litigation to fight on his or her behalf.  Having a licensed attorney involved really is as critical as having a surgeon perform an operation.  So, what’s my role in that analogy?  Think of me like a radiologist– the doctor who reads a patient’s x-rays and MRI scans, and advises the surgeon about where s/he needs to go once the patient is on the table.  I advise litigators about where they need to go once an overseas defendant has been named in a lawsuit.

 

* No, don’t do that.  It’s not a template.  It’s just an overview.

** I recognize the fact that some states don’t allow accused offenders to represent themselves– I contend that this is an unconstitutional restriction– but I remain adamant that if a person is summoned to court, they shouldn’t go alone if they can retain counsel.

*** Just ask my wife.  [It was a simple parking ticket, but she’s still irked that I couldn’t get it dismissed!]

Māori protest at Waitangi, 2006. Charlie Brewer, via Wikimedia Commons.

No original content here– just a reiteration of something I urge lawyers to always be cognizant of:  which language will govern a contract.  In Five Essential Things– Elaborated, Part 4: Choice of Language, I stressed the importance of choosing a contract’s operative language in the contract itself, and making sure that an accurate translation of that operative language makes the other side aware of its terms.  Horrific things result if lawyers miss the mark.

Today’s post over at the China Law Blog is incredibly timely.  I don’t want to steal Adams’ and Dan’s thunder, but this continues to be an incredible worry that U.S. negotiators may be glossing over.  In The US-China “Phase One” Deal — No Text, No Translation. What, Me Worry?, the fellows from Seattle highlight a potential disaster.

Treasury Secretary Steve Mnuchin has dismissed “rumors” that China’s commitments in the deal had been changed in translation. Of course, since no one has seen either the English or Chinese versions of any drafts of the deal, it is impossible to do a side-by-side comparison to see if the English and Chinese versions are consistent or what, if any, changes were made from prior drafts, also undisclosed. There is though a very significant possibility the Chinese version will not be entirely consistent with the U.S. English version and the Chinese will think they have agreed to something different from what President Trump and his team believe they have agreed to.

Yeah.  What could possibly go wrong?

Quite a bit, actually.  Remember that a treaty is nothing more than a special kind of contract– with all the elements like offer, acceptance, meeting of the minds, sometimes adhesion.  And if the terms are ambiguous, confusing, conflicting…   oy vey, the problems that ensue.

Just ask the Māori tribe in what is now known as Middle Earth.  The Treaty of Waitangi didn’t work out too well for them, because their translation didn’t jive with the English version that was backed up by the Royal Navy’s heavy guns.

Secretary Mnuchin would do well to pay attention.

 

 

 

Jennifer Moy, via Wikimedia Commons.

Yet another rant here about advice from purported experts on service of process abroad.  The usual tidbits have been making the rounds of late, according to clients who’ve called me.

As with many areas of the law, things usually aren’t as simple as they seem.  Sure, I often say to clients that serving in Canada is a piece of cake– a tasty piece of wedding cake– because it really is.  If you know what you’re talking about.  England and The Netherlands aren’t too far behind in the ease-of-use category.  That said, they’re only easy if you know what buttons to push and where those buttons are located.

Elsewhere, landmines litter the landscape.  Some examples…

Anybody who says “you won’t meet your deadline” doesn’t know what they’re talking about.  (Maybe.)

The most recent one to pop into my inbox… “my process server says it’ll take three or four months to serve my defendant in Switzerland, but I’m in federal court and I only have 90 days!”

For starters, no.  Just… no.  It may take three or four months from the date a request is submitted to the date proof reaches your desk.  But service itself happens somewhere in the middle– the Swiss don’t just make great watches.  They’re pretty good at getting service effected in a timely manner, too.  In fact, the defendant’s answer deadline will likely pass before proof comes back.

Even at that, the 90-day deadline from Rule 4(m) isn’t the great bogeyman your process server would have you believe.  It only applies to service on U.S. defendants, while it merely helps courts refine the parameters of a reasonable diligence standard for serving abroad.  In many countries, service takes so long that the judge just has to deal with it.

Don’t get me started on process servers weighing in– if they can’t put your mind at ease on this specific issue, how accurate will they be when they start encroaching on legal analysis?

The tough part about services deadlines is that they’re so fact-specific.  And it takes a bit of analysis by somebody who knows what they’re talking about to determine how (or whether) they apply.

Anybody who says “just do it through the Hague Convention” doesn’t know what they’re talking about.

For starters, any piece of advice that begins with “just…” is automatically suspect.  Not always inaccurate, but worth an extra bit of scrutiny.  Rather like “no offense, but…” is usually followed by something offensive.

There is no “just” doing anything about service abroad– especially where Hague doctrine is involved.  Each country has its own complexities and requirements, if indeed the “Hague Convention” applies in the first place (hint: it often doesn’t).   But where it applies, litigators have no choice but to adhere to Hague doctrine.

And at that, there’s no such thing as “THE” Hague Convention.  There are over three dozen of them, ranging from the cross-border sale of goods to child abduction to the Protection of Cultural Property in the Event of Armed Conflict.  Seriously.

Service of process is governed by the aptly-named Hague Service Convention.  Somebody who doesn’t get the distinction… doesn’t know what they’re talking about.

Anybody who says “just hire a process server in (Mexico/Japan/China…)” doesn’t know what they’re talking about.

There are two basic types of legal systems in the world– common law systems, in countries that either have or once had the Union Jack flying over them, or civil law systems everywhere else.  It’s a conundrum.  Process servers are a creature of the common law, and they don’t exist in the civil law .  At least, not in the way we common law practitioners think of them.  Instead (and I risk overgeneralizing here), process is served in civil law jurisdictions by judicial officers who act under the authority of the court.  By and large, they’re trained lawyers who enjoy a statutory monopoly on the authority to serve, in exchange for a limit on their practice area; roughly translated, they’re called bailiffs.  They are not process servers, and even if they were, it may not be legal to hire one directly, given the destination country’s position on Article 10(b).

Anybody who says otherwise… doesn’t know what they’re talking about.

Anybody who says “just mail it” doesn’t know what they’re talking about.

This one frustrates me to no end.  For starters, even where it’s valid, serving by mail is a still a bad idea.  But in much of the world, it’s expressly prohibited by foreign countries’ objections to Article 10(a).  A much-misinterpreted case of late is Water Splash v. Menon, which resolved a major circuit split and rejected the idea that 10(a) is self-negating because of a drafting error.  In holding that that service by mail is legally valid under 10(a), the decision led many to erroneously believe that service by mail is legally valid everywhere the Convention applies.  It simply isn’t– it’s only valid where the foreign country does not object.

At that, forum rules still dictate how service must be effected by mail, so just dropping the summons & complaint in an envelope and shooting them off to the defendant probably isn’t valid.  In federal court, see Rule 4(f)(2)(C)(ii).  It has to originate from the clerk, and it has to require a signed receipt.

Those folks telling you to “just mail it” are not only advocating for the cheap/lazy option– they also don’t know what they’re talking about.

Wrapping up…

Be diligent.  Read up.  And don’t just accept flippant suggestions from someone who doesn’t deal with this sort of thing on a regular basis.  Get in touch with someone who knows what they’re talking about.

 

Venice, Italy… just before the flooding of November, 2019.

A highly relevant question comes up frequently when I’m handling a Hague Service project for my fellow lawyers:

What documents do I have to serve?

The genesis of the question is pretty straightforward– and completely reasonable.  Most litigators are unfamiliar with Hague doctrine, so they’re naturally unsure about what special paperwork has to be included in the packet.  Fortunately, it’s got a pretty easy answer (ie: “you tell me!”), but there is significant nuance behind that answer.  Aside from the request forms that must accompany the documents handed to the defendant, nothing else is necessary.  Because the Hague Service Convention goes to how documents are served– not what.   The “what” of the equation is determined by forum rules. 

Easiest way to illustrate the point: a garden-variety federal suit.

The list of what must be served is determined by the Federal Rules of Civil Procedure (Rule 4 in particular) and the forum court’s local rules. So, if you would have to serve a particular document in New York or Los Angeles or Atlanta, you also have to serve it in Mexico City or Amsterdam or Venice.  Rule 4 requires only the summons and the complaint– bearing in mind that exhibits are part of the complaint– and in most federal districts, that’s all.

Sure, common practice may include service of a civil cover sheet or ADR program guide or (gasp) a particular judge’s Rules of Civility.  However, if there isn’t a “thou shalt serve XYZ” mandate, omit it.  Just because we’ve always done it that way is not a good enough reason to bear unnecessary costs– which I’ll get to in a moment.  But local rules may affirmatively require that you serve a civil cover sheet or ADR program guide or Rules of Civility (several districts require extras).  Those rules don’t distinguish whether a defendant is in the U.S. or abroad, which can cause problems– big problems if translation is required.

If your defendant is in London, no biggie.  I might charge a small printing fee if you have more than 50 or 60 pages (some rule pamphlets are a hundred pages long) but the cost isn’t unbearable.  Let’s say your defendant is in Berlin or Beijing, though.  Translation becomes a necessary part of the equation, regardless of the defendant’s competence in English, so that 100-page set of rules might cost you $10,000 to translate.  That’s a pretty penny.  So hold down the costs by omitting anything that isn’t required.  And if you just think it’s required, peruse the rules– or ask the clerk to cite the rule that mandates it.

 

Best cacio e pepe in Italy.

Completely off-topic for a legal blog… if you come to Rome and don’t have cacio e pepe, you are criminally negligent.

My favorite: Ristorante Terme di Diocleziano.  I cannot overstate the awesomeness of this place.  Really.

Your Google coordinates…

Ristorante Terme di Diocleziano
Via del Viminale, 3/A00184 Roma RM, Italy
+39 06 487 2120

Bills go in the bottom door. As do, apparently, mailed summonses from the United States. (Image credit: GabrielleMerk, via Wikimedia Commons.)

Query from a colleague last week: hey, Aaron, settle a bet for me.  Does Switzerland object to Article 10(a) of the Hague Service Convention?

“Emphatically,” I responded.  And went on to tell him that if he tried serving his Swiss defendant by mail, the time it would take to quash it could be clocked with an egg timer.

Apparently, there had been much debate within his firm over whether they could simply FedEx the summons & complaint to Zurich, because the Hague Service Convention allows it.

Turns out, he was right, and his officemates were wrong– yes, the Convention does indeed permit* service by “postal channels” in countries that do not object to it.  Switzerland objects.  End of debate.

But why that’s such a slam dunk conclusion bears repeating.  A couple of basic elements at work in the analysis:

where it applies, The Hague Service Convention is mandatory and exclusive.

See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), for Justice O’Connor’s take on the matter.  “Where it applies” is pretty critical stuff, but in short, the HSC applies if a plaintiff has to send documents to another Convention country for service (predicated, of course, on knowing the defendant’s address).  Need to serve a Swiss defendant in Switzerland?  The Convention applies.  Period.  It’s mandatory doctrine.  486 U.S. at 699.  And it’s exclusive doctrine.  486 U.S. at 706.

Fortunately, that gives you some latitude in the form of Alternative Means in Article 10.  Namely…

  • Art. 10(a) allows service by mail or courier– think FedEx or UPS in addition to the post office.  Frankly, I think this is usually a bad idea— not because of its legal validity, but because it presents some pretty steep fact challenges.  It’s also very easy to screw up if you ignore Rule 4(f)(2)(C)(ii).
  • Art. 10(b) [and in some instances, 10(c)] allows a plaintiff to directly engage a judicial official or “other competent person” who can effect service.  This one is awfully handy, and I’m very fortunate to do quite a bit of work under this article with colleagues abroad.
BUT…
Article 10 Alternatives are available only where the destination country is okay with them.

It’s right there in the text of the Article:  “Provided the State of destination does not object, the present Convention shall not interfere with... ”  (emphasis added).  Put another way, you can’t just read the treaty and call it a day.  You have to dig a bit for the destination state’s declarations, because declarations (or, with other treaties, reservations) effect what treaty text is actually in force.  If a signatory nation specifically reserves or declares objection to a particular term or article in a multilateral treaty, that particular term or article does not go into effect for that country.

Examples:

  • Between the United States and Canada, Article 10 is wide open– because neither country objects.  Mail it,** hire a process server/sheriff/bailiff/etc., and you’re good to go.
  • Between either of those countries and India, no dice.  India objects, so you can’t “just hire a guy in Mumbai” to serve your client’s soon-to-be-ex-husband.
  • Likewise China, Russia, Venezuela, Germany, Japan, Korea.
  • If that same soon-to-be-ex-husband flies to Toronto, you’re good to go.  See bullet #1 above.
  • And back to our original example… mailing to a Swiss address?  Nope.  Switzerland objects.  End of debate.

By its own terms, Article 10 goes out the window if an objection is raised.  If you see “No opposition” in the chart for each country’s position on the question, then you’re solid.

BUT even then, “competent persons” are often defined very specifically.

Civil law jurisdictions don’t have process servers– at least, not in the way we common law lawyers understand them.  Because service of documents is a prerogative of the court, rather than of the plaintiff, they designate specialized professionals to carry out the act.  In most cases, particularly in the Netherlands, Belgium, and France, bailiffs enjoy a statutory monopoly on service.  Consequently, a private investigator can’t serve in those countries, like they can in the U.S., Australia, or the English-speaking provinces of Canada.

And it’s not just civil law jurisdictions that restrict who can or cannot serve under Article 10.  In Ireland, Northern Ireland, and England & Wales, private process servers can effect service, but they aren’t the “competent persons” referred to in 10(b) and 10(c).  That designation applies to solicitors, who then direct process servers as their agents.  Absent a solicitor’s involvement, private service in those countries is invalid.

So what happens if Article 10 methods aren’t available?

An easy, though not always a happy, answer: an Article 5 request, dispatched to the destination country’s Hague Central Authority.  Or, in the case of a Swiss defendant, to the destination canton’s Central Authority (yes, you’ll need to Google some stuff).  I’m also very fortunate to do a significant amount of work under Article 5– and there are lots of nuances there, best saved for another post.  Still, it’s truly not that arduous (just time consuming in many cases).

Above all, plaintiff’s counsel has to make sure Article 10 is even possible before proceeding down that path.  Quashed service isn’t the only risk– overseas enforcement of a judgment is a losing proposition if service isn’t properly effected under the treaty– and if you “just hire a guy” to serve in China, that guy is looking at a very long prison term for usurping the authority of the state.  Chinese prisons aren’t happy places, I’m told.

 

* Last week, Ted Folkman’s Letters Blogatory carried the latest in a string of “Case of the Day” posts with discussion about the difference between “authorize” and “permit” in Rule 4, as they relate to Hague service.  Yet again, Ted is spot-on with his analysis of a distinction only a lawyer could love.

** Still a bad idea in most cases.

O’Connor, J.  Author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

A primer for defense counsel here– but a cautionary tale for plaintiffs’ lawyers as well.  [With a focus on federal practice, particularly Rule 4… state rules vary, but not by much.]

Hey, Aaron, how do you quash Hague service?

This one was posed to me recently by a colleague.  His understanding was that, just like here in the U.S., if your offshore client receives a summons & complaint from a U.S. court, they have to show up and defend.  And he was desperate to find a way to make the thing go away– at least for a while.

Well, don’t be so quick to think it’s all good, I responded.  There are lots of procedural requirements that plaintiffs’ counsel isn’t always aware of– prompting me to post That Hague Service Request isn’t as solid as you think some three years ago.

In all U.S. cases where it applies, the strictures of the Hague Service Convention must be adhered to.  Period.  There’s no deviation from that, despite a whole bunch of case law that says otherwise.  Says who?  Says that nice lady up above.  ^^^

I also urge defense counsel to Always Question the Validity of Hague Service Requests.  Just because your client knows about the suit doesn’t mean it’s been properly noticed, so you might be able to end the matter before it even really begins.

After we chatted for a few minutes, I concluded that my colleague’s client had been properly served– most notably because the signature on the Hague Request was that of an attorney colleague who knows how to do things the right way, and it was served by a judicial official in the foreign country.  Telling him that he should just answer the complaint was an easy conclusion.  But it got me thinking: I haven’t really put out a cohesive strategy for defense counsel on this issue, so here are just a few examples of attempted service that doesn’t cut the mustard, and some suggestions for attack…

———————————————-

Using Article 10 methods in countries that object to Article 10
  • Best example: plaintiff serves a Swiss (or Mexican or Chinese, et cetera…) defendant by FedEx, because “well, the Convention says mail is okay.”

Yes, the Convention does say, essentially, that service by postal channels is acceptable, but that is only if the State of destination does not object.  The fact that the plaintiff used FedEx rather than the U.S. Postal Service is no problem, but Switzerland objects to Article 10, so mail/courier service if off the table.  (Even if it weren’t, I contend that it’s a bad idea except in the rarest of cases.)

  • Another example: plaintiff asks her cousin to serve papers on a defendant in Mexico, because Rule 4(c)(2) says any non-party adult can serve.

Not so fast– Mexico objects to Article 10, so alternative methods are entirely inappropriate.

In countries that object to Article 10, a plaintiff has no choice but to proceed under Article 5, and that necessitates a Hague Service Request and the involvement of a Central Authority.

Coolcaesar via Wikimedia Commons.
Article 10(a) mail service not in compliance with forum rules

Much hay was made a couple of years ago when the Supreme Court resolved a circuit split large enough to drive a truck through. In Water Splash v. Menon, the Court held unanimously that mail service is permissible under Article 10(a) of the Hague Service Convention. Huzzah, everybody thought.  Now we can mail anything, any time, anywhere.

But that permissibility only matters where (1) again, the destination country doesn’t object, and (2) mail service is valid in the forum court to begin with— and even then, it must be done according to that forum’s rules.

Rule 4(f)(2)(C)(ii) authorizes mail service on defendant’s located outside judicial districts of the United States.  Easy peasy, lemon squeezy, right?

Well, no– not easy peasy.  The mailing has to originate from the Clerk of Court– and it must be sent by a means requiring a signed receipt (we’ll get to that issue in a minute).

Now, it might be argued that 4(f)(1) is the Hague Service Convention rule, so that’s where the authorization for mail service arises– and 4(f)(1) doesn’t require the Clerk or a signed receipt.  Aha, but… the Convention doesn’t expressly authorize mail service.  It permits it (go back to Water Splash).  The Convention merely steps out of the way, so as not to interfere with mail service.  Consequently, mail service has to fall under 4(f)(2)(C)(ii), thus erecting some hoops for the plaintiff to jump through.

Article 10(a) mail service that produces no factual proof

Back to my contention that mail service is a bad idea except in the rarest of cases.  The biggest reason?  Although it might be legally sound, can they prove it up?

Again, 4(f)(2)(C)(ii) requires a signed receipt, so defense counsel can hold fast on the fact question– if the plaintiff doesn’t have a receipt, they can’t prove that service was effected.  Look a little deeper– it may not be valid.

Article 10(b) service by someone not designated as a competent person

Article 10(b) allows service of U.S. process via “judicial officers, officials or other competent persons of the State of destination.”  Very often, this is also erroneously conflated with 4(c)(2), so plaintiffs will just (1) hire a guy in Paris or Amsterdam or London, (2) send the papers, and (3) the guy serves the defendant.

But forum court rules don’t determine competency under Article 10(b)– the State of Destination does.  In France and the Netherlands, bailiffs have a statutory monopoly on service of process, so not just anybody can serve.  And in England, private process servers must be directed by a solicitor.

If “some guy” walks up to your overseas defendant and hands him papers, don’t just presume that U.S. methods control.  Look a little deeper– it may not be valid.

Article 5 service predicated on a faulty request

This one is my white whale– and it’s yet another misconstruction of 4(c)(2) that just grates on me.

The U.S. designation of forwarding authorities under Article 5(3)– that is, who is empowered to sign Hague Service Requests– is limited to “any court official, any attorney, or any other person or entity authorized by the rules of the court.”  There are a host of process servers out there who argue that any non-party adult can serve under 4(c)(2), so any non-party adult can sign a Hague form.  That’s a massive leap in logic.

Joe Bob is not a lawyer.

I’ll say it again– forum court rules don’t determine who is competent to serve in foreign countries, and the act of signing a Hague request is not the same as the act of serving.  Absent a commission by the forum court, non-lawyers are not granted forwarding authority status under Rule 4.

So look a little deeper– it may not be valid.

Any service procedure not initiated in a timely manner

Rule 4(m) mandates that a defendant be served within 90 days of filing, or the court must dismiss that defendant.  But keep reading… it also specifically abrogates that deadline when the defendant is abroad.  The conclusion many attorneys reach from this is that it doesn’t matter how long they take to get the job done.  They’re half right.

No, it doesn’t matter how long it takes to get the defendant served, but this presumes that the plaintiff is not dilatory in starting Hague procedures.  Instead of unlimited time to serve, plaintiffs are under a reasonable diligence standard in cases involving service abroad.  This is generally taken to mean that, as long as a service request is filed with a foreign authority by Day 90, there’s no problem.  From that filing, it’s up to a foreign sovereign to effect service, so plaintiff’s obligation is fulfilled.

But what if they drag their feet?  What if they only call someone like me for help on Day 91?

There are lots of variables in this particular equation– most notably, if there are requests for waiver or negotiations with opposing counsel– that indicate diligence despite a Hague request being filed abroad after the 90th day.  Still, if the plaintiff does literally nothing to effect service within three months, a 4(m) dismissal (not a quash, but a dismissal) is in the offing.

———————————————-

A couple of closing thoughts

What if you do get service quashed–what’s the ultimate result?

Well, unless the plaintiff has completely exhausted all allowable time, they can always just tee it up again.  And remember– under federal rules, at least, all defendants (yes, ALL defendants*) are obliged to waive service, or they risk (1) losing a substantial fee shifting motion and (2) thoroughly annoying the judge.  The best course of action might be to just waive service arguments and fight it out on the merits– saving some grace with a judge who is really irritated by procedural antics.

But if the statute of limitation has run, or the case has already been dismissed once (sans prejudice), savvy defense counsel may be able to make the entire lawsuit vanish.

Like I said, a cautionary tale for plaintiffs (who should outsource stuff like this anyway!).

 

* See Rule 4(d)(1):  “An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.”  The reference to (f) necessarily applies the obligation to defendants located abroad.  Fee shifting is mandatory only as to U.S.-located defendants who refuse to waive.

Tenzing Norgay (right) and Edmund Hillary after successfully completing the first ascent of Mount Everest at 11.30am, 29 May 1953. Via Wikimedia Commons.

About six months ago, I hopped on a conference call with some colleagues who asked me to deliver the keynote address for the annual convention of the National Docketing Association.*  The people the organizers expected to attend are the professional staffers– mostly non-lawyers– who make sure that those magic litigation machines called “law firms” run efficiently.  In short, they’re the support people in firms and court clerks’ offices who make sure lawyers can be lawyers—and that clients can win– by handling the processes that really don’t have much connection to legal analysis.  Processes that drive lawyers nuts.

Okay, I said, what should I talk about?

“Well,” said the committee, “something to fire up our members and remind them of their worth in their organizations.  We’re going to be in Denver, so see if you can work in something about mountains and that sherpa thing that you list as your job title on LinkedIn.”

Sure.  No problem, I said, having not taken enough time to contemplate the sheer terror that my imposter syndrome was about to throw my way.

Somehow it was well received, and thanks to Peggy (my wife), we even had a couple of fun exercises thrown into the mix as well.  It’s time to share the highlights with a broader audience, because this stuff applies everywhere—not just in law firms and courthouses.  I analogized what we do and how our firms succeed to the intrepid climbing masters of the Himalayas: sherpas.**  A distillation of my address:

Point 1: There is no such thing as a self-made man.  Or a self-made woman.  Period.

That concept has always bugged the hell out of me– seriously.  I owe my modest success to teachers and mentors and clients and benefactors… not to mention a spectacular wife.  We all need help getting to the summit.  And without somebody there to tell us “hey, that ice sheet is about to be a 300-foot deep crevasse… don’t stand there,” we’re toast.  Every organization, every leader, every successful person has to have sherpas around.  If they don’t, success will not come.

Point 2:  We have to have faith in the people guiding us.

Face it.  You don’t know everything you need to know.  Nobody knows everything they need to know.  But if we decide we’re smarter than the people around us, we’re toast.

Point 3:  Lawyers have a tough time just accepting things on faith.

Lawyers are trained to be skeptical.  Skepticism is hammered into our thought processes from Day One of law school, and it doesn’t let up.  Ever.  So it’s tough to accept what our support team tells us without a whole bunch of justification.

Point 4: This skepticism is normal, and it’s not personal, so give us a bit of grace.

(Remember that I was speaking to 200 law firm & courthouse support staffers).  Seriously, we’re not ogres.  We’ve got layers.

Point 5:  But remember… you know your stuff better than they do, and you can do it far more efficiently than they can.

I’m constantly beating the outsourcing drum, telling lawyers that spending eight hours researching and executing an issue they can pay me to handle in two is, well, silly.  It’s also silly for lawyers to handle docketing and filing and calendaring when they have a perfectly capable docketing staff (or paralegal or L.A.) who knows how to navigate ECF/PACER.  As it turns out, knowledgeable support people are force multipliers— no matter their industry or organization.  This is particularly true in the law.

Point 6:  Without you, the lawyer isn’t going to summit the mountain.

Without Tenzing Norgay, Sir Edmund Hillary wouldn’t be Sir anything.  Instead of a knight, he’d just be Teddy the Beekeeper from Auckland.  Likewise, there’s no way a lawyer can reach the true heights of success without people to help her/him get there.  That may not mean a staff, and it may not even mean somebody like me to handle Hague Service Convention requests (<– yes, I stuck that in to get the Googlez to notice me).  But nobody succeeds without help.

See Point 1 above.

 

* Heartiest thanks to the NDA’s Executive Committee, who had the goofy idea of bringing me on board as a motivational speaker, rather than a garden-variety CLE presenter.  It really was an honor, and a whole lot of fun.

** The word “Sherpa” has a double meaning.  Capitalized, a Sherpa is a member of a tiny ethic minority native to the Himalaya Mountains.  The lowercase sherpa is a job classification, referring to the people who get western climbers to the summits of Everest, K2, etc.  They are not just porters—they’re expert guides as well, and they have a particular biological adaptation to the thin atmosphere of those peaks: their blood vessels are larger than the rest of us, so their bodies can process oxygen faster.

Some book recommendations I made:

Image by user “chaitawat“, WIkimedia Commons.

My May 18, 2018 post “How to Serve Process in China… important updates”  highlighted a pair of developments in the submission of Hague Service Convention requests to the Central Authority for the People’s Republic of China.  In short…

  1. They moved.
  2. You can’t send a fee check anymore.  Wire transfers only.

Not great news, but hopefully the post helped clear up a bit of confusiion.

Well, today I learned that the Chinese are leading the charge into the 21st century (yeah, the one we’ve been in for almost two decades) by establishing an online portal for submission of requests.  No more printing, no more FedEx or UPS delays, and no more wondering if the paperwork actually reached the right desk in Beijing. From the folks at the International Legal Cooperation Center, a unit of the Ministry of Justice in Beijing:

Dear Colleagues,

To improve the efficiency of judicial assistance in civil matters, our Ministry has developed an online Civil and Commercial Judicial Assistance System. We invite you to use this newly launched system to submit any request for judicial assistance in civil and commercial matters in the framework of Hague Service Convention, Hague Evidence Convention and bilateral treaties signed between foreign countries and China.

Please log onto www.ilcc.online, register and use.

We hope to see your requests coming onto the system very soon.

For the record, I’ve signed up but have yet to use it– I sent a couple of traditional hard copy requests over just last week– but will update this space as soon as I have a basis to comment.

And for an even more important record, other countries ought to follow China’s lead and do likewise.*

* In my original version of this column, I opined that the U.S. should especially follow China’s lead.  Turns out, we already do that, and we did it first.  ABC Legal, the company designated to process requests on behalf of the U.S. Department of Justice, provides just such an online portal.  My apologies to both for not knowing that– I don’t handle inbound requests, obviously, and I should have looked into the matter before lodging a criticism.