A couple of years ago, I ran into a law school classmate at a happy hour hosted by our local bar association. “Hey, you handle service of process in other countries, right?” Yeah, I answered. Quite a bit of Hague Service Convention stuff.
“Great. Lemme ask you a question…”
He was handling a divorce case, representing the wife. They had two kids and a mortgage, both had decent jobs, and both worked hard to make a better life. Your typical Midwestern existence, except for one thing: the husband was Mexican, and had “overstayed his welcome,” as it were. For whatever reason, he’d returned to Mexico, and resumed residence with his parents. He kept in touch with his wife and kids, and sent a few pesos north now & then as he was able, all while trying to get his green card the “right way” (by “standing” in the mythical line at the Embassy).
One day, the wife decided she needed to move on with her life. Not an unreasonable decision given the state of U.S. immigration law, though it certainly raises a question about her level of commitment in the first place. She hired my classmate, a pretty top flight lawyer, to file the petition.
His question to me, as we sipped our Boulevard Pale Ale: “the judge told me if I didn’t get him served within a week, he was going to dismiss the case. When I told him it would take longer because the guy’s in Mexico, he said he didn’t care if he was on the moon, just get it done. So I mailed everything to him. That’s okay, right?”
Now, being Norwegian, I’ve always felt a sort of fraternal connection to Edvard Munch (I’m more a fan of his French contemporaries, but I digress). Naturally, my reaction was this:
No! It’s very much not okay! If you don’t march down to the court tomorrow and file a notice that you need sufficient time to do it properly, the following will happen, in order:
- The defendant fails to answer the petition.
- The judge gladly hands you a default judgment, granting everything you’ve demanded in payment, just to clear his docket.
- Woo hoo! You have a very happy client, who now owns her house in fee simple absolute, who now has sole legal and physical custody of the kids, and who can now marry that handsome fellow she met in the frozen foods section at Piggly Wiggly.
- She tells all of her friends at the PTA that you’re the greatest attorney in town, and they will all flock to you because their husbands are ne’er-do-wells, and they want to find a handsome fellow at Piggly Wiggly, too.
But here comes the nightmare…
- Five years on, the Mexican (ex-)husband gets a letter from the U.S. Embassy in Mexico City. Congratulations, sir. Given that you are a hardworking father of two U.S. citizen children and have waited patiently these many years, you may now enter the United States and freely participate in our economy.
- First thing he does when he gets back? He goes home, to find that his kids address Piggly-Wiggly-Guy as “Dad”.
- He hires the nastiest lawyer he can find to re-open the action that took away his house and his kids.
- Naturally, because he was served in Mexico in a manner contrary to that country’s declarations to the Hague Service Convention, he is granted a new hearing.*
- In which he prevails, forcing Mr. and Mrs. Piggly-Wiggly-Guy to cough up half the value of the house they’ve been happily living in, thinking she owns it in fee simple absolute.
- And in which Dad is granted 50/50 custody** of the children and thus awarded child support because Mom makes a whole bunch more money than Dad does.
- Which facts make Mr. and Mrs. Piggly-Wiggly-Guy ponder how to best end your career as a lawyer.
- Their new lawyer calls me for an opinion letter to include in his petition for damages. I decline, of course, but I can’t save you.
- You call your malpractice carrier, who promises to settle the claim, and then drops you like a hot rock.
- The PTA moms stop calling.
- Sallie Mae does not.
Okay, perhaps there’s a wee bit o’ hyperbole there. But the real takeaway? I don’t care if the judge orders you to serve somebody by mail in a Hague country that objects to it… DO. NOT. DO IT.
Politely tell the judge he’s wrong, call in some help, and do it right.
* Why does the Hague Service Convention matter? Because Sandra Day O’Connor said so.
** We have a new 50/50 presumption in Missouri, which was not in effect on the date of the ill-fated scream I emitted at the bar association happy hour. [For crying out loud, yes, this is a fabricated story. In part. The question was for real, and the answer is substantially a reflection of my real response. The background… all made up.]