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At least once a week, a client will ask how much time they should put in their request for an extension under Rule 4(m) when serving an overseas defendant.  My answer, as I’ve said before: DON’T.

Don’t request an extension. Don’t ask the court for “just a bit more time, Your Honor.”  Don’t even acknowledge that there’s a deadline, because there isn’t one.

Don’t request anything.  There’s nothing to extend.  If you request an extension, then you tell the court you agree that there’s a deadline (which there is not) and then you’ll play hell for the next 18 months begging for extension after extension after extension.

So stop it.  

If somebody in the clerk’s office barks at you about the 90-day deadline in Rule 4(m), tell them to read the entire rule.  Likewise the judge.

Rule 4. Summons

(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).

It bears repeating.  The deadline does not apply to service in a foreign country.
Does.
Not.
Apply.
Now, does this mean you have unlimited time?  Heck no.  It just means you have to be reasonably diligent, and that’s not a hard standard to meet.  If you call opposing counsel for a waiver or seek help from somebody like me to get the ball rolling, it’s going to be a piece of cake to show that you aren’t dragging your feet or wasting the court’s time.  The moment your request packet arrives at the foreign Central Authority, you are deemed diligent.

 

For a bit of elaboration on the time issue, see the following:

 

If you’re in state court, I hope it’s Colorado or Maine (among others), where they’ve pretty well adopted the federal view of things.  Most state rules do provide an extension mechanism (in which case, ignore all that “DON’T” admonishment above), so you should be okay.  Sorry, Wisconsin & Michigan… y’all got problems.  Or, you could just go federal at the outset.

Above all, know that treaty adherence is mandatory when you’re serving in a Hague Service Convention country.  Says who?  Says her:

O’Connor, J. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).