One of the biggest fears my clients face is dismissal under a forum court’s deadline for service. In federal court, that means 90 days, and in most states, it means anywhere from 60 to 120. They’re often frantic about the possibility that some grumpy judge is going to dismiss them. I strive mightily to put their minds at ease.
Fear not, brave Counselor. You’ve got a friend in Rule 4(m).
The gist of Rule 4(m)?
“Get the summons served in 90 days or you’re out of here. But, oh yeah… the 90-day deadline only applies if the defendant is in the United States.“
Outside the U.S., plaintiffs are subject to a reasonable diligence standard, which usually just means that they have to start the ball rolling within 90 days. As long as they’re not dilatory (I had to look it up… they’re not dragging their feet), even the grumpiest of judges isn’t going to dismiss the case, especially if the defendant is in one of the single-method/longer-wait countries like China or Mexico or India. This is especially true amid the Covid-19 pandemic– judges understand (as of this writing, the U.S. lags behind just about every other country in dealing with it).
Unquestionably, you have to serve according to the Hague Service Convention, if it applies. Rumors abound that Central Authorities are all shut down (no, they’re not) and that everything everywhere has just stopped (no, it has not). Sure, time expectations vary wildly from just a few months ago, pre-pandemic [see Yes, They’re Still Open, my post two weeks ago, for more on that], but… even if Central Authorities do shut down again, and even if they do take seemingly forever, there’s still no reason to not get things lined up to go. Set requests up so they get into the pipeline as soon as possible. A few reasons why:
- They’re Called Deadlines For A Reason…. where they actually apply. Adhere to them as best as you can.
- First in, first out… that’s how most Authorities roll. So if you wait until things normalize, you’re at the back of the line, waiting to get on the Buzz &Woody ride at Disney World, distraught that your ice cream is melting.
- Having only one option in Germany doesn’t mean you have only one option in the Netherlands or England. They can go pretty quickly with the magic of Article 10(b).
- If translation is required, it’s going to take some time, too.
- Just about every state (sorry, Wisconsin & Michigan) has a safety valve built into procedural rules, but reasonable diligence is still key.*
- Even after service is effected overseas, proof takes longer than you think, so it’s best to at least initiate things as early as is practical.**
You’ll be glad you got everything moving. Just don’t fret that overseas authorities take so long to finish the job.
* Of particular interest: New York, whose 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.]
** Be careful about removal, though. If you file in state court and anticipate that a U.S. defendant will drag you to the federal court up the street, you might want to wait. That’s not foot-dragging– it’s making sure things are done properly.