“The Sword of Damocles”, Richard Westall (English, 1765-1836)

Every once in a while, a colleague will call me with a story similar to this one:

“A client just walked into my office three days ago with what looks to be a rock-solid case.  We can establish duty, breach, causation, and damages* without a whole lot of difficulty, but the defendants are in Beijing and Toronto.  The statute of limitation runs next week, so we’ve GOT to get them served before then or we’re out of luck.”

Relax, I say.  Get your complaint on file and you’ll be fine.  Toronto we can get done pretty quickly, but Beijing could take a year or more.  The court is just going to have to let you do your job.

“But if we don’t get them served by the time the statute runs, we’ll be dismissed… with prejudice!”

No, you won’t.  You’re on solid ground as long as you file the claim before the statute runs.

See, statutes of limitation(s) require a claimant to initiate proceedings before a certain time expires.  They don’t require service of the action on a defendant, because, in all but a handful of jurisdictions, service of original process can only happen after the proceedings are initiated.  And that service is subject to different time requirements than the statute of limitations might lead you to believe.

A few years ago, I opined in this space that there is no such thing as a service of process emergency.  That’s still true.

“There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue.  There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt.  Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.”

But it is the court’s procedural rules that govern how and when a plaintiff must serve a defendant, both here and abroad.  Those rules vary wildly, with some (including the FRCP) directly addressing defendants served abroad, and others completely missing the boat altogether (I’m looking at you us, Missouri).  But a statute of limitation(s) has nothing to do with it.  Even if it did, that statute may entirely ignore the realities of foreign countries’ laws and practices; the Schlunk decision makes pretty clear that you MUST follow the Hague Service Convention where it applies, and I promise you– India, Mexico, China, and even Germany & Switzerland, whose Hague Central Authorities are relatively fast, don’t give a whit about meeting a deadline set by a U.S. court. Even if that means a plaintiff’s access to justice are dashed.  Instead, it is up to the U.S. court to ensure that access.

Fortunately, they almost always do in situations like this.


* The QUADFECTA of negligence claims.