Twice in two hours this afternoon, I’ve fielded somewhat worried emails:
- “Hey, Aaron, I just heard from opposing counsel that the defendant was served in Tokyo last week” and
- “I’ve just been told that the defendant in Paris was served two months ago, and they haven’t answered the complaint yet.”
Both statements were followed with the very reasonable question, “where in the hell is the proof?” This happens at least a few times a month, often along with “the judge is threatening to dismiss this thing.”
Well, first, relax.
In federal court, you’re not subject to the 90-day deadline in Rule 4(m) when serving abroad– you’re under a reasonable diligence standard. In just about every state, the same result occurs, whether through a rule that tracks the FRCP, or through case law (I’m looking at you, New York). If the same safe harbor isn’t there automatically, the judge can extend for good cause. And what better cause than a mandatory procedure that depends entirely on a foreign bureaucrat being motivated and quick? (Sorry, Michigan & Wisconsin… you guys have it rough, but call me and let’s make some new law together.)
The quick answer to the very reasonable question, “where in the hell is the proof?” is that I really can’t tell you. It could be sitting in a clerk’s “to do” box somewhere overseas, or it could be in Dave’s satchel a block over on Rockhill Road, and he’ll be along shortly to drop it off.* Unfortunately, there’s not much I can do to push the situation along.
This is not a problem, and it’s not out of the ordinary. I frequently tell clients that they will likely hear from opposing counsel before I hear from an Authority. If they learn that the defendant has been served, but we just can’t prove it– yet– it often means that the proof of service can be stapled to a motion for default judgment.
Sure, if I expect that something’s been lost– it’s been nine months when I expected it back in four or five– I can contact the Central Authority. But as long as we’re within the normal timeframe, it could actually be counterproductive to pester them.**
Above all, though, don’t worry. Things move much more slowly abroad than they do here, and if you must serve abroad pursuant to the Hague Service Convention, the judge mustn’t worry either.
* Not his real name. But Dave is my local Letter Carrier (that’s the official term– we used to call them mailmen, until Karl Malone started lighting up Utah). He’s pretty cool.
** My kid sister used to bug me for things. And the more she pestered, the less likely I was to accede to her requests in a timely manner. Foreign bureaucrats can be a lot like that.