Client queries: “hey, Aaron, the clerk says the Hague Service Convention requires certified copies of the Summons and Complaint and something called an Apostille. Where do I get that?”
I get some variant of that question pretty regularly, most often from colleagues within just a few miles of me.*
For starters… no, the Hague Service Convention says nothing of the sort.**
Continue Reading Certified copies? Nope. Not needed.
Last month, in Only serve what is REQUIRED, I suggested insisted that service costs can go through the roof if plaintiff’s counsel seeks to serve documents that aren’t strictly mandated by local rule.*
Routine practice dictates that, along with the Summons and Complaint, additional documents must be served as well. ECF Rules, civil cover sheet, the particular judge’s individual rules of practice, etc… those ancillary docs that have nothing specifically to do with the case at bar, but which are served as a matter of course, usually to deflect any hint of a 12(b)(4) motion. Unfortunately, those documents can sometimes double or even triple the cost to translate everything going to Germany or Japan or Mexico. Thousands of dollars spent on “well, we’ve always done it that way.”
My response: no. Just… no. If it’s not required, leave it out.
But the flip side is also true:
MAKE SURE YOU SERVE EVERYTHING THAT LOCAL RULES REQUIRE.
At least once a week, my office fields the question “what else do I need to serve under Hague?”– or some variation on that theme.
It’s a highly pertinent question because most litigators aren’t familiar with the Hague Service Convention and its various requirements; if they were, I wouldn’t have such a beautiful niche practice, so I truly cannot complain. The question has a simple answer, but one that leads to complexities driven by geography.
Continue Reading Keeping Translation Costs Down, Part Three
Way back in March, 2017, I posted a blurb about the limitations on serving offshore parent companies via their U.S. subsidiaries. In short, I argue, you can’t simply serve a U.S. subsidiary and call it effective on the foreign parent. You have to have a compelling reason to pierce the corporate veil.
This is basic 1L Civ Pro stuff. It’s just too bad they never even mentioned service of process in either semester of Civ Pro in law school– jurisdiction and joinder were far too complex to allow for coverage of the basics, I guess.*
Continue Reading Guess what– you still can’t serve via a subsidiary (unless…)
Hague Service Convention requests constitute 99% of my practice– that’s a literal statistic.* Easily half of them are sent to countries that haven’t caved in to the pressure (good for them) and made English an official language. As such, the lion’s share must be translated into German or Italian or French or Korean… you get the idea. In most instances, my clients just have me take care of the whole shooting match, from soup to nuts. Occasionally, though, a firm or solo lawyer has a relationship with somebody who purports to translate legal documents as a matter of course, so they prefer to handle the linguistic work themselves. To be sure, we’re not a translation provider– we’re a law firm– so if you want to do your own thing, I don’t object.
But I do disclaim the heck out of it.Continue Reading Yeah, buddy, they do check translations.
Ah… faith in humanity restored. Just a bit.
In a rant yesterday (NO, 4(f)(3) is NOT co-equal to Hague channels!), I took issue with the impossibly bad logic in another order approving electronic service on a Chinese defendant under Rule 4(f)(3). Simply put, S.D. Cal. got it wrong, the latest in a string of cases steeped in impossibly bad logic. But at the other end of the Golden State, Magistrate Judge Alex Tse, who has been on the bench a mere six months, got it right.Continue Reading N.D. Cal. gets it right!
Yet another one popped up on the old radar (Google news alerts) yesterday… a National Law Review article highlighted Victaulic Company v. Allied Rubber & Gasket Co., Inc. in S.D. Cal., but the author’s conclusion was far too optimistic for plaintiffs seeking a way around the Hague Service Convention. The court there held that service by electronic means on a Chinese defendant was perfectly acceptable under Rule 4(f)(3) because electronic service isn’t prohibited by international agreement. My (internal scream) response to that: WRONG.
(You should sense a rant coming.)Continue Reading NO, 4(f)(3) is NOT co-equal to Hague channels!
Every once in a while, when a colleague is stymied by limitations to serving an offshore defendant, the thought comes to mind that “hey, I might try to get leave of court to serve the defendant’s U.S. counsel.” It’s a great idea, and if the judge signs off on it, I don’t see how it could be unreasonable under the Mullane standard. Getting to that point, though, is often done in an entirely wrong way: using FRCP Rule 4(f)(3) as a basis for the motion.
Why is that entirely wrong? Because 4(f)(3) doesn’t apply if service doesn’t take place abroad.
Continue Reading Service on U.S. counsel doesn’t arise from Rule 4(f)(3).
In a single day last week, Week Ten of America’s Covid-19 quarantine, I fielded essentially the same oddly segmented inquiry from three different lawyers across the country. A rather disconcerting inquiry, to say the least.
“Hey, Aaron. I’ve got an overseas defendant to serve. I’ve talked to some process servers who tell me that you can’t personally serve anybody overseas right now, so I should just serve by mail.”
When I interject to tell them that, no, that’s a bad idea…
“But they say the Water Splash decision makes it okay. That’s right, isn’t it?”
Continue Reading No, Water Splash isn’t a gift to litigators.
My inbox is oddly flooded this morning. Not with the usual client inquiries (it’s a holiday, after all), but with the normal spate of promotional emails and law firm newsletters I’ve come to expect on most statutory days off. Sure, we’ve commercialized the heck out of every holiday, but that’s happened for centuries. For retailers and restaurants to market their wares and fares on such days becomes much less bothersome as I get older. What is more bothersome every year is the habit of wishing the recipient a “happy” Memorial Day in the subject header.Continue Reading A solemn– not “happy”– occasion.
