Bloggers follow other bloggers, especially in the world of law, and one guy I follow religiously is Ted Folkman and his excellent Letters Blogatory. Long before I started my own thing, I paid rapt attention to what Ted had to say, especially in his “Case of the Day” posts, and although we’re not always of the same mind, he’s been to the wars far longer than I have. His May 22 entry caught my attention in particular because the order he highlighted almost dismissed a Korean defendant because the plaintiff failed to serve the proper documents following removal to federal court. The plaintiff now has to re-start the process of getting the defendant served, and incur additional costs.
Ted points out that a state court summons becomes a nullity upon removal. Once the matter goes up to the federal level, the list of requisite service documents changes, often dramatically, which is why I urge my clients not to delay Hague service, primarily so that they can be certain of translation costs. But State Farm v. Amazon* illustrates an even more costly risk: having to do it all over again, or be dismissed. The court here declined to dismiss the case (which truly would have been inappropriate and wasteful), but it certainly illustrates the risk of having a case kicked before it even begins.
Let’s take a look at how the wheels fell off an otherwise straightforward Hague request to Korea, as well as one to Hong Kong and several to the People’s Republic of China. Two issues come to mind…
Although the court didn’t fully address it, time restrictions are relevant– Federal Rule 4(m) and Arizona Rule 4(i) are effectively identical, and they require a plaintiff to serve within 90 days of filing, or the case is dismissed. While the 90-day deadline is only applicable to domestic defendants, the safe harbor for serving abroad doesn’t grant a plaintiff unlimited time. At least at the federal level, plaintiffs are subject to a reasonable diligence standard, which is usually construed to mean that if a Hague request is delivered to a foreign Authority by Day 90, the plaintiff has fulfilled his duty to keep the litigation moving. Put another way, he isn’t held responsible for delays caused by the foreign Authority, because those delays are beyond his control.
This analysis was omitted for the most part in the most recent D. Ariz. order, and the plaintiff may well have been reasonably diligent with the timing, even though its vendor wasn’t directed to proceed until after 90 days had passed.** But 4(m) isn’t such a big deal, given the judge’s attention to 12(b). The court focused– erroneously, I think– on 12(b)(5), which permits dismissal for insufficient service of process. Really, 12(b)(4) would be the more appropriate basis for dismissal, because it goes to the insufficiency of the process itself. Here, there was no federal summons or removal order served– just the state summons & complaint. But as the court points out, service was properly effected via Korea’s Central Authority. The real issue was the content of the service. State Farm simply didn’t send the right stuff to Seoul, so rather than dismissing, the court ordered it to tee up the ball again– this time with a new 90-day deadline.**
The bottom line: had the plaintiff sent its Hague service vendor the proper documents, service would have been a rather pro forma exercise. Now, the case is delayed by at least nine months. It doesn’t matter if a defendant is in Korea or Kalamazoo– a process server or Hague authority can only serve what they’re given. As much as they (we) try to help ensure that everything is correct, the determination of what documents must be handed to the defendant is up to counsel, pursuant to the rules of the court.
Hague doctrines don’t determine what gets served– just how.
* Three important disclaimers:
- I’m a State Farm client (home and auto– with a fantastic agent), but my client status is entirely disconnected from State Farm’s litigation unit.
- I’m an Amazon Prime member (’cause free shipping, y’all), but my member status is entirely disconnected from Amazon’s litigation unit.
- I was in no way involved in the case highlighted here, so I speak entirely from the outside.
** Of worthy note: there were several Chinese defendants (and one in Hong Kong) named originally, but even if the Beijing Central Authority had been provided the right documents last fall, they wouldn’t be served yet for many months. Under normal circumstances, I would have suggested that State Farm would be wise to re-initiate its Hague requests with the proper documentation, lest the court dismiss the case entirely, and with prejudice. Oddly enough, though, Letters Blogatory already discussed the Chinese defendants in a post last fall— the first time this matter was the Case of the Day. The court benchslapped State Farm in October for failure to do anything– anything, mind you– to initiate a Hague request in a timely manner, and dismissed the Chinese defendants accordingly.
*** I argue vehemently and often that attorneys should outsource their Hague work. I’m biased, to be sure, but undertaking this sort of thing alone is not only unwise– it borders on dangerous. That said, great care is critical. Not every “vendor” is actually qualified to sign a Hague request, so Ted’s cautionary statement on outsourcing to “vendors” must be heeded. The Hague request at issue was signed by Rick Hamilton of ABC Legal in Seattle, which is designated as the contractor for the United States’ Hague Central Authority function by the Department of Justice. To say that Rick knows his stuff is understating things.
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.