(Hint: foreign holidays trump the judge.)
The prevailing rule: a plaintiff’s lawyer has to get things done in a timely manner (ie: yesterday) or the court gets irritated. The judge wants a brief before she goes to bed. The clerk’s office reminds you that they’re closing early in honor of Truman’s birthday tomorrow (in Missouri, we’re just wild about Harry). It’s on you, counsel, to make sure things get executed in a timely manner, or your case gets kicked to the curb. But when you’re serving a defendant overseas, you can’t always do that.
Now, it can sometimes be done quickly and under pretty odd circumstances. My guys in London served a defendant in the midst of massive congestion six blocks from the London apartment building fire last Wednesday—as the event unfolded. Once in a while, speed is possible, but it can almost only happen quickly in (1) other common law jurisdictions that (2) don’t prohibit the use of a private process server. Throughout most of the civil law world, service can only be effected by a judicial officer pursuant to a request to a Hague Central Authority. And depending on where that Central Authority finds itself, service could take weeks, months, even a year or more. (<– That is not a typo.)
To make matters worse, certain holiday seasons extend the wait even more. Several come to mind, and they can really delay things, even more than the timetable that would normally frustrate the judge.
A little one and three big ones:
(1) The bank holiday
Occasionally, the United Kingdom and other members of the Commonwealth shut down their banking systems and tell the financiers to take a day off, Nigel– the money needs a moment to breathe. To be sure, bank holidays are a thinly-veiled strategy to maintain religious holidays (Easter Monday, various saints’ feast days, etc.) in a secular way, but still… when speed is called for and possible in common law jurisdictions, things can be derailed a bit.
In a way, some bank holidays are no different from MLK Day or Presidents’ Day in the U.S.—they’re specific to our calendar, and nobody else observes them. Not a huge delay, but a bump in the road that frustrates litigants who expect service to be effected on an English defendant first thing in the morning.
France shuts down in August. No, I mean roll up the sidewalks, Margaret, we’re closed. They have a very un-American view of relaxation time, re-booting the senses, and flushing out all the stress and frustration that make the American economic engine just hum along. The whole country takes the month of August and goes to the beach. True, somebody has to work the beach, but they import people for that. And Pierre, the new guy, gets to stay home and run the shop while the boss and all the other staffers are recharging their batteries. [Sorry, Pierre, the Americans didn’t get the memo and came to Paris anyway, so someone still has to drive the tour bus.]
What does this mean to U.S litigants who file Hague requests in France? Simple: your paperwork will be delayed at least a couple of weeks—even if you get it submitted before Bastille Day (July 14th). If you expect a proof within three months, better make it four in the late summertime.
Christmas is huge in Germany (and in Italy and Switzerland and throughout Europe, really, but they don’t put the brakes on the procedure like the Germans). So huge that, contrary to the stereotype of Teutonic efficiency, Germany turns rather French around the middle of December, and they don’t show up for work again until January 7th. They celebrate all twelve days, complete with the partridges and pear trees and ladies dancing.
Like August in France, tack on another couple of weeks, at least, until you get a Hague Certificate back from German authorities.
The Chinese New Year or, as the Chinese themselves call it, Spring Festival. Imagine a billion and a half people trying to get home for dinner, all at the same time. The worst nightmares of U.S. holiday travel are multiplied by a factor of four, because everybody is compelled by tradition and respect and obligation not only to go see Mom, but to go and pay respects to their ancestors as well. It’s like somebody took Mother’s Day, Father’s Day, Grandparents’ Day, Memorial Day, Thanksgiving, and Christmas, and crammed them together into a two-week party culminating with a Lantern Festival. It’s big.
Now, to be sure, the Chinese don’t take off the entire two weeks (they espouse the same work-until-you-drop-dead-on-the-factory-floor philosophy that made America great), but it slows things down a bit when you need to file a request for service… they get delayed, much to the chagrin of your judge.
5) Shalom Aleichem*
I don’t speak Hebrew and I certainly can’t pick from the list of exceedingly positive holiday greetings that become appropriate on the Jewish calendar– this one is just my favorite. But each and every one of those holidays calls for the closure of Israeli Administration of Courts– Israel’s Central Authority for the Hague Service Convention. Generally speaking, the Israelis are quick and efficient compared to many Central Authorities throughout the Hague community, but at holiday time, bottlenecks do occur– especially around Rosh Hashanah and Yom Kippur, late summer/early fall.
Yet not all is lost.
Federal Rule 4(m) and all but a couple of states provide a safety valve for service outside the United States (sorry, Wisconsin & Michigan—you guys will have to get creative, so call me). Plaintiffs’ counsel is usually held to a reasonable diligence standard rather than a strict, hard-target deadline for service; a very nice shield against dismissal. But that doesn’t necessarily keep the judge happy, and it doesn’t necessarily keep clients happy either if they think service should happen in their case just like it does in the movies.
* I’m astounded at the similarities between Hebrew and Arabic phrases (as well as Hebrew and Arabic cuisine!). Shalom Aleichem is incredibly close in pronunciation to As-Salaam-Alaikum. They are translated into English exactly the same way, and it warmed my heart once in college to see a rabbi greet an imam with “As-Salaam-Alaikum”… the imam replied in Hebrew “Aleichem Shalom.”
** One more lesser-known holiday: The Feast of the Ascension. Latter part of May, forty days after Easter. It’s a big day in the Christian calendar, but celebrated mostly by Roman Catholics—ardently so in Belgium. They take the whole week off.