[Author’s Note: this applies to federal practice!]
Another quirk comes across my desk now and again that seems, on the surface, to be fairly prophylactic. Realizing that the Hague Request I filed in China months ago will take a while longer to come back, my client petitions the court to extend the Rule 4(m) service deadline by another 90 days. This is pretty pro forma stuff, so the judge says sure, that’s okay. Another 90 days go by and the court wants to know just what in the hell is going on here, counsel… why haven’t you gotten this served yet? Didn’t I grant you an extension already?
Client comes to me and asks for an affidavit in support of his motion, confirming for the court that everything is a-okay , the wait is normal, and “would Your Honor pretty please grant my client’s motion to extend?”
Of course, I’d be happy to do that, but here’s the problem with such an affidavit and motion: THERE’S NOTHING TO EXTEND. The 90-day deadline in Rule 4(m) does not apply to you. Full stop. I’ve written about this issue before, in FRCP Amendments clear up 4(m) just a bit and in You’ve got a friend in 4(m). From the latter post:
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.
That rule, in its entirety (pertinent in bold):
(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).
Right at the outset of a service project, I tell my clients (lawyers all) that service requests to many countries will take well over a year to produce a proof– sometimes two years– and that’s not a problem because of the safe harbor in the last sentence of 4(m). But when you ask the court to extend a non-existent deadline, you’re effectively telling the court that the deadline applies to you. That’s a huge problem where the judge is a grumpy fellow who doesn’t get it.
The best course of action is simply to notify the court: “Now comes plaintiff to record the submission of a properly formatted Service Request to the Central Authority designated by (country’s) declarations to the Hague Service Convention, and to advise the Court that plaintiff’s litigation support attorney expects that the procedure may take two years to complete.” Attach a copy of the Request Form and shipper’s delivery receipt, et voilà. You’re done.
If the judge barks at you six months later, refer Hizzonner to the plain text of 4(m), and if need be, to the seminal case interpreting it in overseas cases, Nylok Corp. v. Fastener World Inc., 396 F. 3d 805, 807 (7th Cir., 2005)…
The explicit language of this rule makes it very clear that the 120-day(*) limit is inapplicable in cases involving service in a foreign country. This rule seems to recognize that the timeliness of foreign service is often out of the plaintiff’s control. (…)
Generally, a plaintiff is required to serve process upon defendants within 120 days after the complaint is filed. Rule 4(m), however, provides an exception in cases where service must occur in a foreign country.
Pretty straightforward stuff– stuff that eliminates the need to extend anything. Recognize that the reasonable inclination to extend actually ends up causing more problems than it solves, and leave it alone.
* The 120-day limit referenced in Nylok pre-dated the 2015 amendments that reduced the time to 90 days.