Sarah Justine Welty @wafflecrisp
Taylor Brandon, Unsplash

Shortly after I hung out my shingle, I posted that defense counsel should always question the validity of Hague Service. Why?

Conversely, I’ve also posted that we know what we’re doing over here. Yes, defense counsel, I said you should question the validity of Hague Service Requests… but don’t be silly about it.  If a complete analysis tells you it’s valid, file an appearance and let it go.  Don’t make questionable arguments that have no merit. The simple fact is, your client has notice of the pendency of the claim and your client has an opportunity to be heard. That means the plaintiff’s Mullane obligations have been fulfilled.

Lately, lots of defense attorneys have grasped at straws to try to make cases go away– cases that we’ve had served pursuant to both Article 5 and Article 10(b) of the Hague Service Convention.

For Article 5 situations

… the argument usually goes something like this: “this wasn’t served according to German law so the case should be dismissed.” The thing is, a German court issued a Hague Certificate saying it was served according to German law, and if the foreign government says it’s served… it’s served.  Game over, kids.  A U.S. court isn’t competent to go behind the Certificate to reach a conclusion of German law contrary to a conclusion by the German judiciary. For crying out loud– Kentucky can’t say Tennessee gets Tennessee law wrong… how can a U.S. court say Germany gets German law wrong?! *

For Article 10(b) serves

…the defense sometimes tries to say the only valid way to serve is through a Central Authority. While that’s correct in China or Mexico or Switzerland, it’s patently false in Ireland, Ontario, Bermuda, etc. And the proof documentation we provide for those 10(b) jurisdictions lays out the doctrine under which the defendant is served. That doctrine is usually where the defense directs its fire.

  • You didn’t serve correctly under FRCP 4(f)(1). [Right. We didn’t. But we did serve correctly under 4(f)(2)(A): “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.”]
  • You didn’t serve an officer or director like it says in Ontario Rule 16.02(1)(c). [Right. We didn’t. We did serve the receptionist who wouldn’t bother to pick up the phone and call somebody– and who was clearly in control of the place. Just like 16.02(1)(c) says.]
  • You didn’t translate the documents into Flemish. [Right. We didn’t. And we don’t have to. Your client is clearly competent in English, and the Belgians don’t require translation. Nor do the Dutch, the Danes,** the francophone Canadian province of Québec…]

Historically, incorrect arguments have been exceedingly rare, but for some reason lately, defense attorneys have ramped up their attacks on what we do. That’s bothersome but understandable– in a hyper-agitated world, combative litigators try everything they can to protect their clients. But if their incorrect arguments aren’t called out… big problems.

More bothersome is the plaintiff’s lawyer who won’t fight back. Who won’t respond to B.S. arguments by calling them B.S. arguments. Y’all, you’ve gotta cowboy up on this stuff. You have to make the argument. Bring a little Rip Wheeler to the party (my wife says to cowgirl up and bring some Beth Dutton to the party, and she’s right).

Don’t just accept what the more aggressive lawyer says. I can arm you with the logic you need, but you have to make the fight.

* Interestingly, a German court recently spit back a series of Hague requests that I’d sent for service on Bayer, the parent company and co-defendant of Monsanto, which is headquartered in my home state of Missouri. The German court said that, because Missouri is a split recovery state, the cases being heard in a different (non-split recovery!) state entirely might mean damages go to the state instead of the plaintiff. That, they said, yanked the cases out of the “civil” realm to which the Hague Service Convention applies. A German court reaching a completely incorrect conclusion of U.S. law.

** Denmark doesn’t require translation. The Danes do require their serving officers to tell defendants they can reject untranslated docs. A bit odd compared to the rest of the continent.

Kilchurn Castle, Scotland
Connor Mollison, Unsplash

Whenever I receive a Hague Service Certificate from a foreign authority, I pass it along to my client with a few pieces of advice– all sketched out in various blog posts.  This is merely a consolidation of a few things to keep in mind on the back end of Hague service…

Questions?  Give a shout.  We’re happy to elaborate any time.

Amazon delivery box with gifts in front of a Christmas tree.
Wicked Monday, Unsplash

Just getting the address right is only half the battle, y’all.

A huge hat tip to my friend and fellow law blogger, Ted Folkman, for his Case of the Day post last week about Peanuts Worldwide v. The Partnerships and Unincorporated Associations Identified on Schedule A (N.D. Ill. 1:23-cv-02965).* He very deftly connected the dots between a real, nuts & bolts case and an issue we both rant about, frequently and loudly. I like to think I bring just the right amount (ie: lots) of sardonic humor to my writing, but Ted is the master of the subtle, having penned a pitch-perfect haiku several years ago to illustrate that service by email is just plain wrong in light of the Hague Service Convention perspective.

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The only possible way that electronic service flies in a Hague airspace is if it is (1) considered a postal channel, which is a tenuous conclusion, and (2) the destination country doesn’t object to Article 10(a)’s permissiveness toward postal channels. The bottom line of Ted’s Charlie Brown post was that electronic service is a no-no when the defendant’s address is known to the plaintiff (and it’s in a country that objects to 10(b)). He didn’t come right out and say the judge bungled it, but I will. The Peanuts court was– and every other court that holds similarly is– dead wrong in green-lighting electronic service merely because “the Hague Service Convention doesn’t prohibit it.”

Sure, it doesn’t explicitly or specifically prohibit it, but that’s because email didn’t exist outside the minds of a bunch of scientists at DARPA when the thing was written (1965). The Convention doesn’t prohibit service by carrier pigeon or smoke signals or message-in-a-bottle either, but whatever… In holding that the Convention’s silence as to email service validates it, numerous courts bizarrely and consciously disregard no less an authority than the late Sandra Day O’Connor.

Unbelievably, writes the judge in Peanuts, “(s)imply put, the Court has never held that the Convention prohibits email—or that its listed means of service must be treated as exclusive.”

Except, yeah, the Court did precisely that in Volkswagen v. Schlunk (at 706)!

Those who eschew its procedures risk discovering that the forum’s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service.

Irony of ironies– many of the judges in these cases, including Peanuts, cite Schlunk on background issues, but seemingly don’t read the whole case. It’s truly baffling.

But there’s an even bigger problem with the whole question of suing these online merchants: with only one or two exceptions, the “Partnerships and Unincorporated Associations Identified on Schedule A” aren’t actually identified! If a defendant’s true identity can be pinpointed, the odds skyrocket that its address can be found and, ultimately, that it can be served via Hague channels. But most of these are just impossible as they exist. Here are just a few of the targets on the docket sheet, I would assume drawn directly from their showcases on Amazon or Walmart or AliBaba:

  • Electrician Guy (huh?)
  • Riccu1000 Store
  • Shop1102298440 Store
  • TongLing Metal Tin Store
  • W-AKL Store
  • Wholesale Small items Store
  • A3ASBOPFT71WGM (what?)
  • Nice To Meet You Plush Store
  • Pretty Girls biubiubiu Store (really?!)

None of them show the hallmarks of an actual Chinese company (one of which is the word “Company” or “Co.”). All of these are 99.44% guaranteed to result in Hague failure. They’re just not identified in a way that will get them past the Chinese gatekeepers– and believe me, those gate keepers scrutinize everything.

The Peanuts court spent a fair amount of time chastising the plaintiffs for knowing where “Electrician Guy” is located, but ultimately said e-service was okay anyway. But whatever– I’m suddenly transported back to my law school Corporations class (my alma mater did things right and called it Biz Org, but many don’t), and one of my favorite professors, Big Tony. Big Tony pounded into our brains that if you don’t properly name your defendant, you don’t have a case. That’s been holy writ in the litigation world since Blackstone was a 1L. Don’t call your defendant Dennis when her name is really Denise. Don’t sue Budweiser when Anheuser-Busch is the actual entity at fault (allegedly). Don’t call it a corporation when it’s really an LLC.

In these Amazon/Walmart/AliBaba cases involving Chinese sellers of copyright- or patent-infringing goods– and they’re almost universally cases involving Chinese sellers– it’s critical to recognize that getting a solid address is only half the battle. In my recent post, “Chinese company names, flawed addresses, and the high likelihood of Hague Service failure“, I hit on both sides of a potentially ugly coin. See, the most frequent basis we see for failed Hague requests to China is this:

No such defendant at the address provided.

More than just a tad ambiguous, that. Do we have an incorrectly named defendant? Do we have a bad address? Did we whiff both questions? We’ll never know.

In that “failure” post, I quoted another friend and fellow law blogger, Dan Harris, over at the China Law Blog:**

  • In China, only the Chinese language name has any legal status; as a legal matter, the English is not relevant. This means you can use any English language name you want.

So if you just indicate “Pretty Girls biubiubiu Store” as your defendant in a Hague Service Request, the address is going to be pretty inconsequential. I’m not saying Pretty Girls biubiubiu Store doesn’t actually exist on AliExpress– it unquestionably does (AliExpress is the consumer side of AliBaba). I am saying that you have to dig deeper to find out just who is behind that store. If you don’t, you can forget about effecting valid Hague service.

So here’s the roadmap.

If Amazon/Walmart/AliBaba won’t (or can’t***) tell you, we can investigate the seller. One of three outcomes results:

  1. We successfully identify and locate a different defendant name, so you amend your pleadings, then we translate and initiate Hague Service.
  2. We confirm the name and address you already have, so no amendment is necessary– we just translate everything and initiate Hague Service.
  3. We can’t find any discernible entity or individual behind the goofy seller name, but the diligence you’ve spent provides a solid foundation for a 4(f)(3) motion (electronic service is okay in such an instance because the Hague Service Convention doesn’t apply!) and a takedown order forcing Amazon/Walmart/AliBaba to stop providing a conduit for the infringing goods. And isn’t that the real goal anyway?

Seriously. That distills it all down. None of this is cheap, but a little homework at the beginning goes a very, very long way.

* If you subscribe to this blog and not to Letters Blogatory, repent and correct your wicked, sinnin’ ways, friend.

** If you don’t subscribe to the China Law Blog, ibidum.

*** Seems to me that the online marketplace is part of the problem in such an instance. Full disclosure: I’m a loyal, usually quite happy Amazon customer, and I’m afraid to tally up just how much I’ve spent just loading up my Kindle over the past few years. Never mind the actual merchandise or my Amazon Prime credit card.

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Yes, Big Papi. Among the most famous Dominicans. (Image: Toasterb via Wikimedia Commons.)

This is penned on July 9, 2024, well in advance of the Dominican Republic’s implementation of the Hague Service Convention. It will be revised in total on October 1 when the Convention enters into force.

If the action can wait until then… wait, because for the moment, the Convention’s lack of force is at once a blessing and a curse. On one hand, we aren’t bound to a mandatory means of service (this applies to U.S. and Canadian actions alike). On the other, we don’t have a streamlined way of doing things either. As such, there are really three ways currently available, though none of them carries the heft of a Hague procedure. These methods pertain to U.S. federal (civil matters) only– state matters and those heard in Canadian courts require a bit more complex analysis. Still, you’ll get the gist:

  • Option 1: MAIL. Ordinarily, I contend that mail service is a bad idea, but in most non-Hague jurisdictions, I often recommend it. The DR is one of them. If you don’t anticipate having to go abroad to enforce, it’s completely viable, legally speaking. You still have a fact problem, but legal validity isn’t a challenge. Just make sure you’re doing it right.
  • Option 2: ELECTRONIC SERVICE. Completely valid from a due process standpoint, and available by court order under Rule 4(f)(3). Like mail, if you don’t anticipate having to go abroad to enforce, you’re on solid ground.
  • Option 3: Letter Rogatory. The oldest of old-fashioned methods of serving someone in a foreign jurisdiction. It’s pricy, it takes a while, and plaintiff’s counsel has zero control over the matter, but it’s the only way to overcome a validity challenge in an enforcement action abroad.

Stay tuned in the fall, as this will change.

Rich Coast. Delicious Coast. Abundant Coast. However you want to translate Costa Rica into English, it conjures images of palm trees and stunning beaches and lush interior rainforest. And parrots. Lots and lots of parrots. I have a friend who spends a month down there every winter, and who can blame him?

But there’s quite a bit more to this Central American nation than umbrellas you sit under and umbrellas poking out of an icy beverage. Costa Rica has more teachers than soldiers, they say. Its economy is one of the healthiest and it’s the most politically stable in Central America, and it enjoys free trade with several of its neighbors and the United States.  Since 2016, serving process in Costa Rica has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  You have to file a Hague Evidence Request (on in the case of Costa Rica, a Letter Rogatory)  Dramatically different from serving a summons or notice.

Here’s how service is done in Costa Rica:

Article 5 Service

  • Translate the documents. Yes, into Spanish. Yes, it’s required. Opt to not do this… well, do not pass GO, do not collect $200.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise (including all of the entered details in Spanish), and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely several months, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10 options may or may not be available– we don’t know, because Costa Rica’s declarations aren’t known. As such, don’t get cute.

Seriously—that’s all there is to it in Costa Rica.

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

Interestingly, the seminal case regarding electronic service, and its validity under the Mullane doctrine, would produce a dramatically different result to today.  At the time of Rio Properties, Costa Rica had not joined the Hague Service Convention.  Were the same facts at issue in 2024, electronic service and the Convention would conflict violently.

Ordinarily, a how-to guide like this would lay out methodology for the application of the Hague Service Convention. But Panama isn’t party to the Hague Service Convention, so that idea goes out the window. This is at once a blessing and a curse.

It’s a blessing

… because you aren’t tied to a method that is wholly reliant on the performance of foreign bureaucrats who aren’t exactly motivated to take care of you in a speedy manner– if they even like us at all. In Russia, U.S. and Canadian Hague Requests are rejected as a matter of course. Venezuela hasn’t had a functional government for years, so it’s tough to even get a Request on file. In Mexico, China, and India, internal procedures are so cumbersome that plaintiffs wait literally years for proof to come back.

It’s a curse

… because there’s no truly streamlined method that relies on those foreign bureaucrats to ensure compliance with local law and practice. The only government channel available is a Letter Rogatory, transmitted pursuant to an OAS treaty that does little but cut diplomatic legations out of the equation. If you must go that way, contact the contractor who handles the U.S. government’s Central Authority function for the InterAmerican Convention on Letters Rogatory and Additional Protocol. [Canada is not a Convention member, so you’re back to the traditional means of conveyance… diplomatic channels.]

Other options?

So what is a practitioner to do when faced with serving a defendant in Panama? Two ideas, described here in the context of U.S. federal rules (noting that state and Canadian provincial rules may have analogous provisions):

Mail

Ordinarily, I contend that service by mail is a terrible idea. Ordinarily, there are better options, though. In the case of Panama, mail is my first recommendation most of the time. Just be sure to comply strictly with Rule 4(f)(2)(C)(ii) or you’re out of luck.

The rule requires that the documents be (1) dispatched from the clerk’s office and (2) sent using a form of mail* requiring a signed receipt. That’s where the wheels fall off much of the time. (But keep reading.)

Electronic service

Rule 4(f)(3) is the mechanism by which a plaintiff can seek an order to serve electronically. It’s constitutionally valid from a due process perspective, and because Panama hasn’t signed on to the Hague Service Convention, there’s no treaty conflict.

Mail, but…

While you’re at it, take a belt & suspenders approach and in your 4(f)(3) motion, ask for an order dispensing with the signature requirement of 4(f)(2)(C)(ii). The ordinary rule allows service by mail as a matter of right, but requires that pesky signed delivery receipt– a rather arcane idea in a post-Covid world. Remember that the Mullane doctrine requires a means reasonably calculated to give the defendant notice and an opportunity to be heard. But mail and e-mail together in the third decade of the 21st century, and you’ve got pretty reasonable calculation.

Wrapping it up

Not a whole lot of fanfare involved– there’s no truly great method of serving in Panama like there are in other places. Letter Rogatory service– even within the treaty mechanism– is costly and time-consuming. Mail and electronic service might get speedier notice and bring your defendant to the table more quickly, but those methods offer a very convenient pretext to a foreign court that wishes to deny recognition and enforcement of your U.S. or Canadian judgment.

In any event, we’re always happy to provide a little direction (even though, for Panama, there’s nothing to engage us for!).

* FedEx and UPS qualify, and given DHL’s penetration of the Latin American market, it might be the best of the bunch. I contend that the actual Post Office, a shell of its former self, is the last thing you should think of if you truly want to get the job done.

Congratulations. Your USM-94 has arrived and you’ve fulfilled your obligation relative to the Hague Service Convention. Whether you’re a client who has retained us to file an Article 5 Request on your behalf with a foreign government, or you’ve used the Hague Envoy platform, or you’re one of those intrepid do-it-yourself* practitioners who has decided to, well, do it yourself… here’s what comes next:

Wait.

Seriously, that’s all you can do. Now that you’re on file in Beijing or Berlin or Bogota, you’ve done everything possible, and you’ve fulfilled your duty. From here, it’s all in the hands of a foreign sovereign, and it’s absolutely critical that you get out of your American lawyer head (or Canadian lawyer head) and recognize that things just work differently “over there”.

Here are some pertinent posts to offer perspective for you on what’s coming down the pike:

And even above that, know that we’re here for you.

Even when we’re taking the kids to the beach.

* Sure, I’m obviously biased, but I contend that going it alone is usually a bad idea– and even if you get it right, it’s costing you more than you think.

View from inside a clock face in Paris, France.
Catrina Carrigan, Unsplash

Another frequently asked question we get here at Viking Advocates is how much extra time an overseas defendant gets to answer.

A very easy reply: None. Nada, zip, zero, zilch.

But opposing counsel contends that they get 90 days because of the Hague Service Convention, says my client.

Ahem, no, says me.

The Convention merely governs how process* is served. It says nothing whatsoever about the conduct of the litigation itself. That question goes back to the rules of the court hearing the case. In short, if the summons says the defendant must answer in 21 days, he gets 21 days, period. It doesn’t matter that he’s served in the Republic of Notamerica. If the summons says he gets 30 days, he gets 30 days. It doesn’t matter that he’s served in the Republic of Notamerica. There’s no variance on that.**

So where did opposing counsel get the crazy idea that the answer deadline gets extended? In all likelihood, he’s conflating actual service abroad (pursuant to the treaty) with waiving service at the plaintiff’s request.*** I give you Rule 4(d)(3)…

  • Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

Two things have to happen for that 90-day grace to kick in: (1) the plaintiff has to actually request it, and (2) the defendant has to actually waive.

If either of those doesn’t happen, no extra time.

If the defendant must be served pursuant to the Hague Service Convention, the deadline does not extend.

Period.

* Not just process, but all judicial documents that must be served (great exception: subpoenas, but that’s a different argument). For our purpose here, it’s all process.

** A little known quirk in Washington’s civ pro rules: defendants served in the state get 21 days, while defendants served out of state get 30. This variance has nothing whatsoever to do with the Hague Service Convention– and arises in a very goofy place. It’s baked into the various defenses & objections of Rule 12, rather than Rule 4 where it belongs. (Wash. rules are structured similarly to federal rules.)

*** I suggest sending a waiver request before hiring us to tackle Hague service because fee shifting is a possibility.

Latest trend in litigation nationwide: Danish pharmaceutical manufacturer Novo Nordisk and its subsidiaries, sued in the United States for dramatically adverse effects of Ozempic and Wegovy. At issue is the relative safety of two medications that were originally approved for treating different yet closely related (diabetes and cardiovascular recovery) maladies, but have been found dramatically effective in treating obesity. This post disregards merits of the suits,* and focuses solely on procedural requirements to launch them.

So, what’s necessary in serving Novo Nordisk? Not anything out of the ordinary, really. Our how-to guide on service of process in Denmark lays out all the particulars of service pursuant to the Hague Service Convention, but one issue is important to keep in mind: Denmark’s position on translation. Here it is, verbatim:

A translation is not required; in the case of an untranslated document, however, the addressee is informed that he is not, under Danish law, under an obligation to accept it.

A bit of a challenge, that. Very rare is the Dane who doesn’t speak English as well as I do– seriously. Technically, you shouldn’t have to worry if your pleadings are solely in English. But many of my clients do worry, and they pay for a pro to turn everything into Danish. Why? It’s tough to say whether the serving officer in Bagsværd will be adamant about that or whether the N.N. staff member who receives the documents will be recalcitrant. If they refuse, the plaintiff goes back to the drawing board and starts all over with the translation,.

Now, fortunately, the Danish authorities are pretty quick, only taking two or three months to return proof of service, but it’s still a gamble, and if the pleadings are relatively short, it won’t cost much to translate.

While the suits are barreling headlong into full MDL status, many must nonetheless be served now. Eventually, as the suits become more consolidated in Chicago (N.D. Ill.), and eventually defense counsel will be compelled to accept, service will be progressively less necessary.

But for now, from a service of process perspective, these cases are not extraordinary. There aren’t special rules for them, and there’s not an exemption from Hague requirements unless they waive or somebody in the United States waives or accepts for the offshore defendants.

* Full disclosure: I’ve struggled with weight my entire adult life, my entire adolescence, and much of my childhood. This culminated with literally life-saving gastric bypass surgery twenty years ago. This issue is personal. I’m still fighting it at 52, and actually pondering these medications, but also realizing that fewer beers and a couple more sessions at the YMCA every week would go a long way toward the goal.

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What? Atticus Finch was also a whaling ship captain?

(Hat tip to Ted Folkman, for whom Gurung v. Molhatra is a White Whale. This issue is one of mine, for similarly frustrating reasons.)

Remember that legal analysis hierarchy they told us about as 1L’s? In order of authority:

  • Constitution
  • Statutes
  • Rules promulgated pursuant to statute
  • Precedent (binding and then persuasive, giving obiter dicta less weight than ratio decidendi*)
  • (if the text of any statute or rule is ambiguous) Legislative History

Well, that’s the basis for today’s rant.

A takeaway I gleaned not long ago from The Secret Barrister (which I highly recommend) is this: yes, yes, legislatures make statutes, but courts feel an irresistible, instinctive need to put their own gloss on the text. While it’s critical for courts to fill in legislative gaps, that can a recipe for trouble, and that trouble is alive and well in at least one area of my practice.

My legal writing professor (who saved my career from oblivion) hammered into our brains that we should always go to the source for legal analysis. Don’t just look to case law– go the the statute or rule itself. Why? Because precedents may be out of date, Shepard’s may not catch critical changes in the law, and courts sometimes get it flat-out wrong. When they do, they spawn a line of cases that make matters worse. So here we go with a rant on one such ridiculous line.

Rule 4(d)(1) waiver obligation

Fed. R. Civ. P. 4(d)(1) obliges defendants to waive service. All of them, with the notable exception of governments and their agencies and instrumentalities. This is beyond contestation.

Verbatim:

(1) Requesting a Waiver. 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.

When you’re suing an offshore individual or entity (other than a government defendant), the defendant is obliged to waive, period.

But back to that gloss that courts feel the need to slather onto the words of various drafters. Here’s where the fun really begins.

Sometimes dicta is a problem child. It’s definitely a problem child when it is neither analyzed, explained, or sensical. I give you the following sentence– dictum, to be sure– from O’Rourke Bros. Inc. v. Nesbitt Burns, Inc. 201 F.3d 948, 951 (7th Cir. 2000):

Rule 4(d)(2) provides foreign defendants the ability to waive service but exempts them from costs for a failure to execute the waiver.

Seems pretty straightforward, no?

Well, no, it’s not. For one thing, the ratio decidendi (okay, it’s a fancy word for holding) of O’Rourke Bros. wasn’t even about a 4(d) waiver– it was about a Rule 60 motion to overturn a dismissal. But more importantly, the sentence is manifestly incorrect. The simple fact is, 4(d)(2) doesn’t provide “the ability to waive”– 4(d)(1) mandates the waiver. Rule 4(d)(2) also doesn’t exempt anything.

The Rule 4(d)(2) fee shifting provision

Here’s 4(d)(2), verbatim and in its entirety:

Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

Anybody see the word “exempt” there? Anybody see the words “but not if…” or “unless”? Am I the only one who can’t see any reference to non-U.S. defendants whatsoever?

Hmmm. Curious. There is not a single word in that rule pertaining to naughty foreigners. As it turns out, the original 1989 draft of 4(d)(2) didn’t distinguish based on where a defendant was subject to service. It just said that if a defendant didn’t have a good reason for not waiving, the court had to shift costs to him/her/it.

Pretty simple, and pretty reasonable, too, if you ask me.

This was not the view taken by the Court of St. James, whose diplomatic legation threw a hissy fit, objecting to such an affront to the sovereignty of Her Majesty and the freedom of her subjects. The drafting committee didn’t want to have the fight, so they punted.** (Sure, I exaggerate, but still– the last time we let the Court of St. James tell us how to write our rules, a bunch of guys dumped a shipload of tea into Boston Harbor.)

Getting back to that hierarchy… courts should only look to advisory committee notes and legislative history if there’s ambiguity in the rule or statutory text. And there is no ambiguity whatsoever in Rule 4(d)(2). It is a command: thou shalt shift fees onto naughty Americans. It says nary a word about what happens (or doesn’t happen) beyond our shores.

So my question: did the drafters just want to shut the Brits up and make them go away? (I thought we did that at Yorktown in 1781, but still…) Or did they seriously intend to prohibit fee shifting– in which case, why not remove the clear obligation in 4(d)(1)? Recall that defendants subject to service under 4(f) and 4(h)– so, individuals and entities in foreign countries– are obliged. The drafters left that language intact.

Advisory Committee Notes in Conflict

Even at that, the Advisory Committee notes paint a rather interesting picture– a conflicting picture if ever there was one. Regarding the obligation:

The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense. Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States.

(Emphasis added. I disagree that there’s no useful purpose in it– my stockbroker makes very nice commissions thanks to it. But I digress.)

Continuing:

The opportunity for waiver has distinct advantages to a foreign defendant. By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English.

(Emphasis added.)

Yet regarding fee shifting:

Nor are there any adverse consequences to a foreign defendant, since the provisions for shifting the expense of service to a defendant that declines to waive service apply only if the plaintiff and defendant are both located in the United States.

Um, huh?

On one hand, there’s no useful purpose in making the plaintiff shell out healthy four- or five- (I’ve even seen six!) figures to serve a foreign defendant– and those costs may impliedly be taxed against the defendant anyway– yet there are no adverse consequences to being furtive? Are you kidding me?

Remember the old adage that a camel is a horse designed by a committee? Well, this set of Notes is what we get when one committee member doesn’t know what another committee member is saying.

Mercifully, in that 1L hierarchy, the Notes don’t constitute law, and they only have bearing where the law is ambiguous.

Fee shifting to recalcitrant offshore defendants is not prohibited by 4(d)(2). It’s discretionary, and well within the court’s inherent authority to enforce obligations.

O’Rourke Bros. should be overturned. Or at least, its dunderheaded dictum should be disregarded.

* Yes, I like Latin.

** For a more thorough rundown– and criticism– of the rule drafting story, see Brockmeyer v. May, 383 F.3d 798, 807-808 (9th Cir. 2004).