(TL;DR– it isn’t used after service abroad, so why pay to translate it?)
The standard sheaf of documents that we’re asked to have served on foreign defendants in foreign lands obviously includes a summons. The lion’s share of cases we handle are in federal court, so this naturally means a Form AO440 or the occasional AO441. Page two of those forms, long before e-filing, were often printed on the physical reverse of the summons itself. The front said to the defendant, essentially, “you’ve been sued, and you have 21 days to show up and argue your case.” The back said to the court, “hey, judge, I’m Joe Bob the Process Server, and I handed the summons & complaint to the defendant on X date at Y time.”
But when we have somebody served abroad, the page two proof is not the operative document…
- If we have service effected pursuant to Article 5 of the Hague Service Convention, the form of proof is prescribed by Article 6. It’s called a Hague Certificate, and (as I posted a few years ago) it’s all the proof you need.
- If we instead proceed under Article 10(b), proof comes in a full-blown affidavit rather than the flip side of the summons. Why? Because the flip side doesn’t fully describe fulfillment of the applicable law.**
Consequently, the second page of the summons form is really of no legal, um… consequence. It also might tend to annoy foreign authorities who view it as an inappropriate directive from a U.S. court. So I usually pull it from the stack of service docs and save my client a few bucks in translation.
This all falls under Rule 4(l)(2) and it’s pretty straightforward stuff…
(l) Proving Service.
(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.
(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:
(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.
Rule 4(l)(2)(A) covers Article 5 service. It also ostensibly covers Article 10(b), but since that Article doesn’t prescribe a form of proof, bump to (B). Straight-up rule construction there. In any event, note the parenthetical after “PROOF OF SERVICE” at the top of page two:
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
Without it, you’re good to go.
* Hat tip to the late, great Flip Wilson. Pun very much intended.
** If it is used, defense counsel ought to howl in protest.