How this concept turned into a series, I don’t know, but today we offer yet another description of the need to amend the standard language in a summons.
See my priors:
This time, we’re talking about good old Form AO440, the Summons in a Civil Action that is used to kick off a suit in U.S. District Court, and its use in Foreign Sovereign Immunities Act (FSIA) cases.
The standard AO440 sets a 21-day deadline for a defendant’s answer. If they’re served on December 3rd, they’d better answer by Christmas Eve, or come Boxing Day the plaintiff can staple proof of service to a default motion. Nothing odd or controversial about that.
Note the text that follows the 21-day language: “… or 60 days if you are the United States or a United States agency.” Still no controversy.
But a little known statutory clause provides that same deadline extension to foreign governments, agencies, and instrumentalities, too. I give you 28 U.S.C. §1608(d), part of the service section of the FSIA. The extension is simply a matter of right, so in order to avoid any confusion on the issue, I often advise my clients to have the summons language amended. Clerks are usually happy to do so without much pushback.
A few weeks ago, however, the clerk in a sparsely populated district (identity withheld to protect the innocent) flatly refused to change the text, and said we’d have to get the judge to order her to modify the standard form. More motion practice, more delay, and more irritation for the person wearing the shiny robe and wielding a little wooden hammer…
Seems a bit silly given the explicit text of §1608(d), and given that S.D.N.Y. and D.D.C. both do it as a matter of course, providing already-modified forms on their websites here and here. But Foley Square and 333 Constitution Avenue N.W. see more FSIA cases than any other district (foreign embassies abound in both, of course), so it’s not surprising that they provide blanks at the outset. It’s also not surprising that clerks out here in The Flyover* would be unfamiliar. They just don’t see this stuff very often. But if you run into this situation, just show the clerk this post (it just shouldn’t take more motion practice to get this stuff done) and maybe you’ll save everybody– including the clerk!– a bunch of hassle.
* Sure, dictionary.com considers the word just an adjective. Here in The Flyover, it’s a noun. And we don’t mind, frankly, because anybody who uses the term derisively is best advised to stay where you are, because we don’t appreciate your attitude toward our home and might be prone to not be nice to you.