Here we go again. Every few weeks, somewhere in these 50 states, a case gets dismissed for lack of proper service on a foreign sovereign (or foreign state instrumentality). There’s not a single rule, statute, or customary practice that ought to tell a plaintiff that just dropping a summons & complaint on a receptionist’s desk at a foreign diplomatic mission is effective. Write this down…
THAT. DOES. NOT. WORK.
Unless they’re exceedingly dense, opposing counsel is going to 12(b)(5) the hell out of your claim. Very likely after Rule 4(m)’s 90-day deadline passes (uh oh). Your client will be less than amused. So don’t even try. No, really.
Late one afternoon, on a plane ride home from Italy, I clicked into that high-tech touchscreen (you know, the one that works sometimes) on the seatback in front of me. I’ve always had a bit of a crush on Helen Mirren, so I spent a very worthwhile 109 minutes watching Woman in Gold. It really is an incredible film, depicting a Los Angeles woman’s quest to recover a legendary painting that had been stolen from her family in the early days of the Nazis’ attempt to eradicate the Jews of Europe.
Some five decades after the war, she learns that the painting hangs in the Austrian state museum and, with the help of an energetic young attorney (who looks strangely like Wade Wilson), launches a lawsuit against the gallery that purports to own it. Because the gallery is owned by the Austrian government, the energetic fellow says process has to be served by sliding the summons & complaint through a teller’s window at the Austrians’ L.A. consulate. And litigation begins in earnest.
Had I been alone in my own home, I would have emitted a deathly scream unlike has been heard in Kansas City since we dropped the 2014 World Series. I’m Norwegian, so it would have looked like this:
But… aircraft decorum prohibits such noise when fellow travelers are trying to sleep, so I kept my mouth shut and grumbled through the rest of the movie. Why the mental torture?
BECAUSE HOLLYWOOD SCREWS UP THE RULES.
There’s no way in hell that the real Randy Schoenberg got it done that way.* Not a chance, unless he really was young and green (okay, that I understand) and the lawyers hired by the Austrian government were simply clueless.
If they weren’t clueless, it would take all of seven minutes to draft the 12(b)(5) motion. And that includes time enough to open and pour a Stiegl to consume upon completion.
In reality, the Foreign Sovereign Immunities Act controls the method of service– and in this case particularly, 28 U.S.C. §1608(a). That statute, in turn, raises the question of how service is effected in Austria. Simply put, a Letter Rogatory, because Austria (as I understand it) has a statutory prohibition on mail service. End of options before resorting to diplomatic note.
And because HOLLYWOOD SCREWS UP THE RULES, lawyers far & wide stop short of investigating how to do it properly. It staggers the imagination.
Seriously… just do this.
* I emailed the man himself. Randy, how’d you really do it? No answer. I really blame Hollywood scriptwriters for this, in the same way infantrymen curse filmmakers who lack the good sense to hire Dale Dye.
Update, July 20, 2020: an interesting new application of the FSIA hierarchy is in the works, and I’m curious to see how it is interpreted. As of September 12 (some eight weeks from now), the Hague Service Convention will enter into force in Austria. Its declarations are yet to be posted to the HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention. Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods. So my question: how does this square with the §1608(a) list, which mandates that mail service be attempted before diplomatic channels? We shall see.