A couple of years ago, I posited in “Removal and the Timing of Hague Service Convention Requests, Real World” that not only must service be effected properly, but the contents of the service packet had to be proper as well. I discussed a case in which State Farm* sued a Korean defendant– among others– in state court, but one of the defendants removed the case to federal court before State Farm’s counsel initiated Hague procedures in Seoul. The state summons was served instead of the appropriate federal summons, so the defense had a beautiful 12(b) motion to dismiss. Ultimately, the case wasn’t kicked, but it could have been.
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.
It bears repeating: there was no federal summons or removal notice served– just the state summons & complaint.
That’s risky, and it absolutely must be avoided, because savvy defense counsel will key in on that error every time, and they’re likely to win, at least in part.
If you file a state suit, get the wheels turning immediately to serve that state suit. If you’re fairly convinced that removal will come before you can get a Hague request on file, hold off on translating the documents and engaging somebody like me to handle it for you.** But above all else, make sure that once you’re removed, you have a federal summons at the front of the packet.
* Immaterial to the analysis, but important full disclosure: I’m a State Farm client.
** Don’t hold off on talking to somebody– but don’t pull the trigger too soon either.
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. So does the Erie doctrine.