A bit of 4L stuff here– the stuff they never mentioned in Civ Pro class* because it was so basic as to be assumed [ahem, we all know what assumptions do]. Your assigned readings today are limited (mercifully) to Fed. R. Civ. P. 12, with particular focus on 12(b). Be prepared to discuss the rule in a
sadistic Socratic “rolling boulder” scenario.
The topic: motions to dismiss, both (1) generally speaking and (2) more specifically as they relate to defendants located abroad.
To distill the issue… when a plaintiff files a lawsuit, defense counsel is duty-bound to find a way to get that thing kicked out of court in the most expeditious way possible, without fanfare, and at a minimized cost to the client(s). In federal court, the “Magic Seven Defenses” of Rule 12(b) can be asserted by motion prior to a responsive pleading, and they usually appear in a motion to dismiss. My favorite of the seven is 12(b)(6), affectionately known as the Rolling Stones Rule: failure to state a claim upon which relief can be granted, or, if you’re a fan of Sir Michael Jagger and his merry band of minstrels, “I can’t get no satisfaction.” It’s my favorite because when I write blog posts, I tend to fall down very enjoyable YouTube holes with classic rock playlists. But I digress.
A 12(b)(6) motion really doesn’t relate to many transnational issues, unfortunately. It really boils down to whether the plaintiff has made a prima facie case that, yes judge, you’ll have something to go on here.
Really, two 12(b) defenses loom large in matters involving foreign** defendants:
- 12(b)(4), insufficient process; and
- 12(b)(5), insufficient service of process.
I delved into 12(b)(4) issues earlier this month in “Removal and the Timing of Hague Service Convention Requests, Real World,” and it touches on the subject of last week’s rant, so I won’t belabor the point here. Essentially, the wheels fall of a case when you don’t serve the right documents– in the removal case discussed earlier, the plaintiff initiated Hague service of a state summons & complaint long after the case had been removed to federal court. The judge wasn’t happy, because Hague service takes a while, and when you fail to include a federal summons and removal order, it unnecessarily delays the proceedings.
But 12(b)(5) is the big one in transnational practice, and it smacks plaintiffs’ attorneys pretty hard when they try to circumvent Hague doctrine. In short, if a defendant (1) is located in a country that is party to the Hague Service Convention, and (2) you have to serve them in that country, rather than here in the U.S., the plaintiff MUST adhere to Hague strictures. No exceptions. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).
Now, this means different things in different countries– under certain circumstances, you can use private process servers in most common law jurisdictions. In most civil law systems, you’re limited to a specific request to a designated Central Authority. But let’s say you desperately want to get things done within the ordinary 90 days*** and you hire a guy to serve a Chinese corporation. Service in China takes prit’ near forever, so you cut to the chase by having your guy walk into the defendant’s office in Shanghai and drop the documents on the corporate secretary’s desk. Allowable under Article 10(c) of the Hague Service Convention, right?
Wrong. Not only is the guy you hired now subject to criminal charges and likely to serve a lengthy stint as a guest of the Chinese penal system, you’ve also failed to recognize China’s objection to Article 10. It simply ain’t so.
But now the defendant is aware of the claim, and has some very appealing strategies before it. In all likelihood, the Chinese defendant will simply ignore your notice, content in the knowledge that it wasn’t properly served. There’s not a chance in hell that an offshore court will ever enforce a default judgment, given your complete disregard of China’s exclusive sovereign authority in serving process. But only slightly less effective a strategy: they can 12(b)(5) the hell out of your complaint. [Yes, a rule citation is now a verb.]
The ultimate effect of a 12(b) dismissal varies, of course. It may just mean you get to tee up the ball again and do it properly, if the judge dismisses sans prejudice, but your client probably isn’t too impressed with your performance. Far worse, though, is dismissal with prejudice or expiration of a statute of limitation. This is not the best outcome.
The bottom line: the time to be wary of 12(b) motions is when you draft the complaint. Be sure cross-border issues inform that wariness.
* Truth be told, we actually did spend an entire day on 12(b) motions in Civ Pro way back in the day. Context was key, though– I really didn’t grasp the concept until a friend connected the dots to the Rolling Stones.
** Foreign in the “you need a passport to go there” sense. Not in the “cross State Line Road to get there” sense. It’s a term of art with two meanings– oddly enough, I mean the more colloquial of the two!
*** A related issue: Rule 4(m), which governs deadlines for service. I discuss the time issue pretty frequently, but this post delves into it specifically. In short, 4(m)’s 90-day service deadline isn’t applicable to service on defendants outside the U.S. This doesn’t grant unlimited time, of course. Rather, a reasonable diligence standard applies. As long as a plaintiff gets a request submitted to a foreign Central Authority within 90 days, it’s all okay. If not…