Aaron's Rants

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Brandon Grasley via Wikimedia Commons.

[Details have been changed to protect the innocent.  Some variant of this story happens routinely— at least every couple of months.]

A few weeks ago, I received a Hague Certificate following a request that I’d sent on a client’s behalf to a foreign Central Authority. Essentially, it said, hey, Aaron, thanks for playing– we served your defendant on February 30th, so go get ’em.  My client filed it in fairly short order and all seemed to be well.*

Opposing Counsel filed a responsive motion, asking the court to reject the proof provided by the foreign Central Authority, insisting that only an affidavit would do, and that the Hague Certificate that we’d filed was insufficient under the Federal Rules of Civil Procedure.  O.C. cited Rule 4(l)(1), which is crystal clear that an affidavit is required to demonstrate proper service.

(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.

It’s crystal clear if you stop reading there.Continue Reading Hague Service Convention proof supersedes local rules.

Federal Courthouse, Sioux City, Iowa. I worked in that building for three years back in the Ice Age. (GSA Image)

Y’all, if you know you’re going to be removed, just initiate the case in federal court to begin with.  It’ll save everybody involved a whole bunch of time and headache.

Lots of plaintiffs’ lawyers gasp when I say that.  They look at me like I have three heads.

  • “Are you nuts?”
  • “Oh, you’re a comedian now?”
  • “Clearly, you’re an idiot.”

I certainly understand why they react that way. 
Continue Reading Go federal at the outset.

The old Jackson County Courthouse, Independence, Missouri.  We don’t use it anymore, and Independence isn’t the county seat anymore.  MT Images via Wikimedia Commons.

A routine question from clients across the continent– especially those in my own state*:  “Hey, Aaron, the clerk says I have to tell the court who is going to be serving the documents in China or they won’t issue my summons.  Could you get me the process server’s name and qualifications so they can appoint him?”

There’s a lot loaded into that, with some compelling responses.  The primary response: No… you and I don’t get to know that. 
Continue Reading No, the U.S. court doesn’t get to appoint a process server overseas.

For the record, this story did not originate at Foley Square.  S.D.N.Y. clerks are on the ball.  This story happened in another highly sophisticated district– one with LOTS of maritime and IP cases, many of which I’ve had served without such hassle.  Image: TJ Bickerton, via Wikimedia Commons.

A new quandary popped up for me recently, one that I hope is just a matter of a stressed-out government employee* who’s been dealing with a lot over the past two years.  Last month, a client called me because he needed to serve a defendant in Sweden.  No problem, said I, as long as you have a valid address, we should be good to go.  He engaged me, and we were just about ready to rock & roll with the Hague Request, but before I pulled the trigger on the translation, I said I needed an issued summons.  No dice, said he.  He had been told by the court clerk that he had to submit the translated version of the complaint before a summons would be issued.

Um, huh?  Wha… ?   

Continue Reading Sorry, court clerks—you don’t have the authority to review translations.

Trafalgar Square, London.  Just a few blocks from the Royal Courts of Justice and England’s Central Authority.

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.

Continue Reading Serve EVERYTHING that’s required.

Oh yaaah?

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…)

Native languages of extreme northern North America and Siberia have several different words for “snow”.  I went to Alaska on a cruise once, but I’m definitely not qualified to translate.

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.

Phillip Burton Federal Building, San Francisco. Sam Wheeler via Wikimedia Commons.

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!