Another frequently asked question we get here at Viking Advocates is how much extra time an overseas defendant gets to answer.

A very easy reply: None. Nada, zip, zero, zilch.

But opposing counsel contends that they get 90 days because of the Hague Service Convention, says my client.

Ahem, no, says me.

The Convention merely governs how process* is served. It says nothing whatsoever about the conduct of the litigation itself. That question goes back to the rules of the court hearing the case. In short, if the summons says the defendant must answer in 21 days, he gets 21 days, period. It doesn’t matter that he’s served in the Republic of Notamerica. If the summons says he gets 30 days, he gets 30 days. It doesn’t matter that he’s served in the Republic of Notamerica. There’s no variance on that.**

So where did opposing counsel get the crazy idea that the answer deadline gets extended? In all likelihood, he’s conflating actual service abroad (pursuant to the treaty) with waiving service at the plaintiff’s request.*** I give you Rule 4(d)(3)…

• Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

Two things have to happen for that 90-day grace to kick in: (1) the plaintiff has to actually request it, and (2) the defendant has to actually waive.

If either of those doesn’t happen, no extra time.

If the defendant must be served pursuant to the Hague Service Convention, the deadline does not extend.

Period.

Author’s note: there’s one glaring exception to this concept, and that involves defendants served pursuant to the Foreign Sovereign Immunities Act. The FSIA’s section on service provides a 60-day deadline to foreign governments, agencies, and instrumentalities. See 28 U.S.C. §1608(d). The extension is simply a matter of right, so in order to avoid any confusion on the issue, I advise my clients to have the summons language amended.

* Not just process, but all judicial documents that must be served (great exception: subpoenas, but that’s a different argument). For our purpose here, it’s all process.

** A little known quirk in Washington’s civ pro rules: defendants served in the state get 21 days, while defendants served out of state get 30. This variance has nothing whatsoever to do with the Hague Service Convention– and arises in a very goofy place. It’s baked into the various defenses & objections of Rule 12, rather than Rule 4 where it belongs. (Wash. rules are structured similarly to federal rules.)

*** I suggest sending a waiver request before hiring us to tackle Hague service because fee shifting is a possibility.