In a single day at the end of last month, no fewer than four of my clients pinged me to say “hey, I just got off the phone with opposing counsel telling me their client was served. Can you confirm that?” [Short answer: no.]
“Well, when are we going to get a proof?” [Short answer: when the foreign Central Authority sends me one.]
It is perfectly normal for your opposing counsel to call you before I even know that service has been effected. But keep in mind the progression of events when we file a request for service under Article 5 of the Hague Service Convention:
- Have the documents translated into the language required by the destination country (or as necessary under the defendant’s right to due process).
- Fill out the Request (the vaunted Form USM-94 in U.S. practice).
- Send everything to the appropriate Central Authority.
- Wait. (This is where service happens. It’s also where the Authority generates the Hague Certificate.)
- Receive proof of service. Hopefully. After a few weeks, a few months, or (depending on where it went) a couple of years. <– That’s not a typo.
To be sure, in the vast majority of cases, that progression happens without a hiccup. The world’s governments have been doing this thing since before I was born (I’m a ’71 model), and they really do have it down to a system– albeit an incredibly slow one in places.
See, the fact is, things just don’t work as quickly overseas as they do here on this vast continent called North America. U.S. and Canadian lawyers are used to having our defendants served within a matter of hours. Here, it’s a fairly pro forma exercise unless the defendant is a sneaky sort of human being, conniving to evade our wily agents of justice. But add a bureaucratic procedure to the mix and even our wheels turn more slowly that we’d like.
What happened to me four times in a day last month is routine– truly not out of the ordinary. And my clients are justifiably perplexed when I can’t tell them their defendant has been served, while their opponent clearly seems to know all about it.
It’s really very simple. Let’s lay a hypo over the progression outlined above. Say you’re a litigator who files a lawsuit in the U.S. District Court for the Western District of Iowa, naming a Korean corporation and its Arizona subsidiary as defendants. The Arizona outfit gets served about twenty minutes after you email the documents to a process server in Phoenix. Serving the Korean mother ship takes more time and effort (not to mention cost) but, wise professional that you are, you hire a consulting attorney to coordinate the matter for you. We’ll call that guy Moses, just for funsies.*
- Moses has the documents translated into Korean. (The Koreans require translation, regardless of the defendant’s competence.)
- He fills out the Request form.
- He sends everything to the Central Authority in Seoul.
- You wait.
- Three months later, your phone rings. It’s the same guy you talked to in Arizona who represents the subsidiary, who tells you he represents the parent as well, and demands that you produce a proof of service or he’s going to file a 12(b)(5) motion.
- You call Moses to discuss the matter, and he assures you that this is perfectly normal. You can advise opposing counsel that he has 21 days to answer the Complaint [and should really take a look at Rule 4(l)(3) before spouting off].
- Another two months later, Moses sends you the proof of service that just rolled into his office from Seoul. Having received no answer from the fellow in Arizona, you staple a default motion to it before filing it.
Again, it is perfectly normal for your opposing counsel to call you before I even know that service has been effected. When I say that you may know before I do, that’s because it happens all the time, and is no reason for alarm.
* In my twenties, I served on the board of my church. One Sunday, we had a guest priest sub in for the Rector, and over a drink after the service (Episcopalians do it right), he said to me in a very High Church accent, “Aaron, did you know that Moses talked with God about godly things, but Aaron argued with God about worldly things?” Um, yyyyyeah. That sounds about right.
(Image credits, both via Wikimedia Commons: crossed fingers by Evan-Amos, telephone by Steimes.)