A new quandary popped up for me recently, one that I hope is just a matter of a stressed-out government employee* who’s been dealing with a lot over the past two years. Last month, a client called me because he needed to serve a defendant in Sweden. No problem, said I, as long as you have a valid address, we should be good to go. He engaged me, and we were just about ready to rock & roll with the Hague Request, but before I pulled the trigger on the translation, I said I needed an issued summons. No dice, said he. He had been told by the court clerk that he had to submit the translated version of the complaint before a summons would be issued.
Um, huh? Wha… ?
I quickly pulled up Rule 4 to see if I’d missed anything. I was pretty confident that I’d never seen a court even want to see foreign-language documents– much less have the authority to make such a demand. On the other hand, I did remember a pretty clear mandate that the clerk had to follow:
(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served.
Unless I’m wrong, that bold-type sentence (emphasis mine, of course) is crystal clear. Some foreshadowing in the construction of this particular rule: you’ll see absolutely no reference to whether the defendant is in the U.S. or elsewhere. Let’s break it down into bite-size chunks:
If the summons is properly completed…
Any defects to form? Unlikely. The AO440 (and it’s little brother, the AO441) is pretty difficult to screw up. Select the proper district, type in the parties names and the case number, put in the name and address of the specific defendant it’s directed toward, and indicate the contact info for plaintiff’s counsel. Easy, peasy, lemon, squeezy.
… the clerk must sign, seal, and issue it…
I love that word, “must”. No gray area whatsoever. No complexity, no waffling. Unless there’s a defect, sign it, seal it, and ISSUE the thing.
… to the plaintiff for service on the defendant.
Aha! It’s the plaintiff’s concern to make sure service is properly effected. Period. The clerk’s involvement is over.
(^^^ NO REFERENCE TO FOREIGN COUNTRIES UP THERE ^^^)
So what’s next?
Well, we’re done with that rule, so what comes next is entirely the plaintiff’s problem. Defendant in Sweden? Okay, let’s call Aaron and see what we need to do. He knows about that Hague thingy. He’ll know what to do.
First thing to do under the Hague Service Convention is translate the docs. Why now, rather than before the summons is issued? Because the summons has to be translated too, and it’s rather silly to have to pay for two different translation projects. No, translating the proposed summons isn’t sufficient because the clerk still has to date it and seal it… both of those have to be translated, along with the ECF stamp at the top… see where I’m going here?
Then, I fill out and sign the vaunted Form USM-94, and print & ship everything off to Stockholm, where Swedish authorities will take anywhere from six months to a year to respond.
What purpose does the translation serve under U.S. rules? Pretty much none. It’s all but worthless, even if the judge is this guy:
But it’s critical once Hague doctrine kicks in. From a legal perspective, the translation suits only two purposes: (1) to satisfy the foreign government’s requirement under the Hague Service Convention, and (2) to demonstrate that the defendant’s due process rights are vindicated if he doesn’t speak English. That’s it. It only becomes part of the record when submitted as evidentiary support of proof that service was effected.
Bottom line: the court virtually never needs to see the translated text, and the clerk certainly has no authority to review it. That is, unless this outfit is entertaining the staff that day:
* This is not a “hate on government employees” kick. My mother was an AFSCME local president and I once drew a federal paycheck for a few years myself, so stop it. It’s also not a “hate on court clerks” post either. It is, however, critical of a small number of court clerks who misunderstand the mechanics of international law and won’t take off the blinders.
** Or plaintiff’s counsel fills out and signs, or some other attorney fills out and signs it. To be sure, clerks can fill it out & sign it, but that’s extraordinarily rare in practice– and the only reason they are so authorized is because the Department of State said so. It’s not an inherent power of their office.
Okay, one more picture from Sweden’s golden age: