[Originally published at vikinglaw.us]
No, really. There is truly no such thing.
There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue. There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt. Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.
Tried & true concepts in litigation are changing at extraordinary speed (a platitude, to be sure), and litigation involving foreign parties and witnesses is becoming a major challenge for attorneys and courts in every jurisdiction.
Fortunately, rules in most courts provide ample time for service, especially Federal Rule 4(m), which specifically abrogates a hard 90-day deadline for service where the defendant is outside the United States. As long as counsel isn’t dilatory (I had to look that one up), the spirit of the deadline is honored once a request for assistance is handed off to a foreign authority. At that point, a lawyer can only wait for the authority to accommodate the request. [NB: Most states reach similar conclusions by either procedural rule or case law. Wisconsin and Michigan are the lone holdouts, and even they may offer some safe harbor to litigants.]
Critical in this analysis is the mandatory and exclusive nature of the Hague Service Convention. In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor wrote for a unanimous court that, where the Convention applies, its strictures must be followed. The channels set forth by the Convention mean vastly different things in the various countries where it applies, and for the most part, this means the U.S. court hearing a case must usually wait patiently for service to be effected. Simply put, our rules do not apply elsewhere.
Effective service abroad usually cannot be timed with a clock… several pages of a calendar comprise the better measuring device.* In some cases, service can take over a year to be proved up– even more in the post-Covid era (are we past it yet?).
Yet 4(m)’s safe harbor does not give an attorney unlimited time. The dilatory among us face sure dismissal, and it takes a long time to reach that level.
* Exceptions to this: parts of Canada, Australia, and England, where Article 10 negates the need for government channels to have a defendant served. In rare cases, process can be served within a matter of hours, and proved within days. But don’t bet the farm on this possibility. Ever.
** For the record, Big Ben is the bell inside the tower. The former St. Stephen’s Tower has been renamed Elizabeth Tower. We were 102 miles from Balmoral when the queen died on September 8, 2022. I’ll call the Elizabeth Tower if for no other reason than.. dang, she was funny.