Very frequently, I rail in this space about keeping service costs down by reining in the length of documents to be translated. But even assuming a limited stack of docs to serve, that’s not the only way to limit expenditures. Timing is critical, too. The longer you wait, the more it can cost– and I don’t just mean the increase in my fees to handle a project on a rush basis.
Every once in a while, I’ll talk to a client (a lawyer, specifically) who has just filed a suit and has everything ready to go abroad under the cover of a Hague request… the vaunted “USM-94” in common U.S. parlance (though to be fair, it’s not a U.S. government document– it just carries a U.S. Marshals Service document number). I tell the lawyer it will cost a few hundred dollars in fees, plus a couple of thousand in translation. I formalize the cost structure, send it off to my colleague, and… crickets. I don’t hear anything for weeks. Perhaps that’s because the litigant wants to wait. Perhaps it’s because the litigant is short on funds. I get it, really.
But lo and behold, the case gets removed to federal court, and counsel realizes that the
clock er– calendar– has already been ticking for weeks. This thing has to start moving within 90 days of filing* or the foreign defendants will eventually be dismissed for lack of notice. So counsel calls me and says, okay, let’s go with it. But when the documents arrive, he’s added twelve pages of additional documents, and the summons has changed from a state form to the federal standard (the AO 440— which is a U.S. government document).
Sure, there are tactical and strategic reasons to wait. Perhaps counsel knows that it’s going to be removed, and when it it does go up to federal court, he has a mechanism to request a waiver. Perhaps opposing counsel is not playing nicely with others and is leading him to believe that a waiver is forthcoming– even though it never does come. Perhaps, again, the litigant just doesn’t send a check.
But waiting can be costly in Hague situations. Where translation is required, the price tag can grow dramatically with the addition of federal documents on top of the state pleadings.** That is why I urge a more timely approach to serving overseas. All courts’ rules require action within a certain time– either by a certain date or within a reasonable diligence standard. But if that time period is rather long and most of several defendants are stateside, either the foreigners can get missed, or the cost to serve them can increase.
* FRCP 4(m) requires that U.S. defendants be served within 90 days, or the court must dismiss the case against them. But service on defendants located outside the U.S. are addressed in the last sentence of 4(m); simply put, the deadline doesn’t apply. That doesn’t mean a plaintiff has all the time he wants– a reasonable diligence standard applies.
** FRCP 4(c)(1) requires service of the summons and complaint. That’s it (although the complaint necessarily includes exhibits & attachments). But the list doesn’t end there when the case has been removed from state court. Add the order/notice of removal. Add such additional gems as the Civil Cover Sheet, garden variety standing rules, litanies about standards of civility, etc., in the individual districts whose local rules so dictate. Individual judges may even require service of their own rules of practice– and these can be awfully dense. For every additional page, the cost to translate can go up by $100 or more per page.
FOR CLERKS OF COURT:
Please take notice of the applicable rules regarding this issue.
- Rule 4(a)(1) mandates that the summons name the court hearing the case. If the suit is originally brought in state court, the act of removal nullifies the state summons because the state court is no longer hearing the case. The issuance of a new federal summons (AO440) is critical; without it, the plaintiff is wholly unable to fulfill his/her/its obligations elsewhere in Rule 4.
- Rule 4(b) requires the Clerk to “sign, seal, and issue it to the plaintiff for service on the defendant.” This is predicated, of course, on the plaintiff submitting a properly completed AO440 (which is available for download here).
- Rule 81(c)(1) applies the Federal Rules of Civil Procedure to actions removed from state court.