Ninety days. That’s how long you have to serve your defendant, counsel. If you don’t get it done, your case is dismissed.
Put another way… cross a certain line on the calendar without progress, and your claim is dead.
Ah, but wait! The defendant is overseas, and Rule 4(m) says the 90-day deadline doesn’t apply! I have to follow the Hague Service Convention, and that means months or years to get a proof back.
Well, that’s true (and I’m giddy that you recognize the mandatory nature of the Convention). But that doesn’t mean you have unlimited time. Rather than a hard deadline to serve, you’re subject to a reasonable diligence standard, which is usually interpreted to mean that you have 90 days to file a request with a foreign Central Authority. If you don’t even try… dismissed. [For a real world illustration, see Ted Folkman’s post on State Farm v. Amazon from last fall. For some higher authority: Nylok Corp. v. Fastener World Inc., 396 F. 3d 805 (7th Cir., 2005).*]
Bottom line: don’t drag your feet.
It ain’t rocket surgery. Although it’s easy to get tripped up by intricate details here & there, getting a Hague request filed is not such an arduous task, especially when you can consult with other lawyers (hint, hint) who do this sort of thing regularly (I’m not the only one).
Now, to be sure, 4(m)’s automatic safe harbor doesn’t necessarily exist at the state level. Many states’ procedural rules do track the FRCP directly, or with just a bit of variance (say, 60 or 120 days instead of 90). Others have fairly liberal rules that allow extensions for good cause– and what better cause than a mandatory mechanism that requires counsel to rely on the caprices of a foreign sovereign? Still others, especially New York, lack a codified safe harbor but reach the same result with case law.**
Only in Michigan and Wisconsin is the issue problematic… there’s no wiggle room in their respective rules. Must be something about making beer and Buicks that warrants a hardline rule. (Hey, Badgers and Wolverines and Spartans… I’m looking for a test case that runs into the deadline buzz saw up there. I think I may have a good argument to carve out an exception.)
Elsewhere, rest easy– but not so easy that you’re deemed dilatory (yeah, I had to Google that one the first time I heard it). Even though you have safe harbor, it doesn’t stay safe forever.
* Nylok was decided when 4(m) required service in 120 days. The Rule has since been amended to 90, but the same analysis no doubt applies.
** The New York view on the matter is beautifully illustrated in Bumpus v. NYC Transit Authority. CPLR 306-b requires service in 120 days, but Bumpus specifically acknowledges circumstances beyond the plaintiff’s control, including the delay caused by Hague strictures. [Bumpus also specifically reminds me of A Christmas Story, so it’s incredibly easy to remember the citation.]