Service of Process Abroad

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Grace Bailey, Maine Windjammer Cruises, Camden.

[Author’s Note:  This morning, Peggy and I woke up in 1882.  No, really.  We are on board the schooner Grace Bailey for a bit of a break from Missouri’s brutal humidity & heat; if you email me this week, fuggedaboutit.  You’ll get my out-of-office response for the first time in well over two years.  Our floating home cruises by wind off the coast of Maine, lacking internet access and a cell signal and electricity (horror of horrors– we actually have to read books and talk to other human beings while underway!).  It seems the perfect reason to post today’s subject: serving in maritime cases.  Yes, this is written in advance and scheduled to post while we’re sailing, sailing, over the bounding main.  Whatever that is.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a bankruptcy lawyer, I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

I don’t react positively, as you might imagine.  [I explain their error here.]

Fortunately, though, folks who handle maritime claims know full well that their defendants are often located abroad– that’s the very nature of oceangoing– so they understand the deal.  What they sometimes don’t understand is the point in my Boromir slide (right up there ^^^).  If they’re serving Hapag-Lloyd, they can’t just serve by mail, even though mail service is clearly acceptable under the Hague Service Convention and the FRCP.  See, both Article 10 and FRCP 4(f)(2)(C) only allow mail service if the destination country allows it, and Germany doesn’t.  But the only way to know that is to either (1) read Germany’s declarations to the Convention or (2) read my blog on how to serve in Germany.

They also often don’t ponder the distinction between a defendant’s acceptance of service and its waiver of service.  There’s a massive difference between the two– one requiring adherence to Hague requirements and the other dispensing with them altogether.

And lest they think that service on Hanjin Shipping is effective by handing the documents to the captain of one of its ships while she’s in port… ahem, no.  You can’t serve the owner by merely tagging its vessel (just as you can’t serve a parent company via its U.S. subsidiary).

If you’re serving…

  • Hanjin or Hyundai, you go to Korea.
  • Maersk, to Denmark.
  • COSCO… China.
  • MSC… Switzerland.  Wait– isn’t Switzerland landlocked?  Well, yes, but how many maritime lawyers are part of the Kansas City bar, smart guy?  (Several, as it turns out.)

All of those countries have different declarations & requirements.  And if you don’t satisfy those requirements…

This is Ned Stark.

* One type of maritime issue that doesn’t usually need Hague analysis: cruise ships.  I’m told that the terms and conditions of cruise companies’ tickets usually include a designated agent for service in the U.S.   Who knew?

Peggy and I just took a time warp to 1882.  No, really.  We are on board the schooner Grace Bailey for a bit of a break from Kansas City’s brutal July weather.  All week, we’ll be sailing, sailing, over the bounding main (whatever that is), but not accessible to handle client needs.  If you email me this week, fuggedaboutit.  You’ll get my out-of-office response for the first time in well over two years.  Our floating home is propelled by wind, off the coast of Maine, lacking internet access and a cell signal and… electricity.

A few weeks ago, I was chatting with my favorite new client, letting her know that I’d be out of pocket all this week.  “When I say ‘out of pocket,’ I mean I will be on this thing…”

Grace Bailey, flagship of Maine Windjammer Cruises.

The thought occurred to me that, fairly regularly, I will field a frantic phone call or desperately drafted email from a lawyer or paralegal facing an imminent service deadline.  Two years ago, I posted “There is no such thing as a service of process emergency” to illustrate (1) the glacial pace at which service abroad can sometimes move, and (2) the widespread safe harbor afforded by court rules.

At the federal level, Rule 4(m), along with the case law construing it in transnational cases, invokes a reasonable diligence standard, and gives ample time to litigators who need to serve offshore defendants.  Just about all state rules (sorry, Wisconsin & Michigan) offer some sort of extension or similar reasonable diligence standard– if not automatically, then by fairly pro forma motion.

The point is…

Relax.

Really– relax.  Perhaps call Margaret and the good folks at Maine Windjammer Cruises and see what they can put together for you.

As long as you’re not at Day 80 with a 350-page patent infringement claim to translate and serve in China* or some such scenario, you’re going to be okay.  I promise.  I also promise I’ll get in touch with you as soon as I dig out of the thousand emails (not an exaggeration) I expect to have waiting for me when we reach safe harbor at the weekend.**

 

* In which case, I probably can’t help you anyway, unless you’ve been trying to secure a waiver from the defense.  In any event, a few days is unlikely to upset the apple cart.

** See what I did there?  Safe harbor!  Yeah, yeah– Peggy’s always saying “if you have to explain it, it’s not funny“

“Worried People,” Pedro Ribeiro Simões, via Wikimedia Commons

Twice in two hours this afternoon, I’ve fielded somewhat worried emails:

  • “Hey, Aaron, I just heard from opposing counsel that the defendant was served in Tokyo last week” and
  • “I’ve just been told that the defendant in Paris was served two months ago, and they haven’t answered the complaint yet.”

Both statements were followed with the very reasonable question, “where in the hell is the proof?”  This happens at least a few times a month, often along with “the judge is threatening to dismiss this thing.”

Well, first, relax.

In federal court, you’re not subject to the 90-day deadline in Rule 4(m) when serving abroad– you’re under a reasonable diligence standard.  In just about every state, the same result occurs, whether through a rule that tracks the FRCP, or through case law (I’m looking at you, New York).  If the same safe harbor isn’t there automatically, the judge can extend for good cause.  And what better cause than a mandatory procedure that depends entirely on a foreign bureaucrat being motivated and quick?  (Sorry, Michigan & Wisconsin… you guys have it rough, but call me and let’s make some new law together.)

The quick answer to the very reasonable question, “where in the hell is the proof?” is that I really can’t tell you.  It could be sitting in a clerk’s “to do” box somewhere overseas, or it could be in Dave’s satchel a block over on Rockhill Road, and he’ll be along shortly to drop it off.*  Unfortunately, there’s not much I can do to push the situation along.

This is not a problem, and it’s not out of the ordinary.  I frequently tell clients that they will likely hear from opposing counsel before I hear from an Authority.  If they learn that the defendant has been served, but we just can’t prove it– yet– it often means that the proof of service can be stapled to a motion for default judgment.

Sure, if I expect that something’s been lost– it’s been nine months when I expected it back in four or five– I can contact the Central Authority.  But as long as we’re within the normal timeframe, it could actually be counterproductive to pester them.**

Above all, though, don’t worry.  Things move much more slowly abroad than they do here, and if you must serve abroad pursuant to the Hague Service Convention, the judge mustn’t worry either.

* Not his real name.  But Dave is my local Letter Carrier (that’s the official term– we used to call them mailmen, until Karl Malone started lighting up Utah).  He’s pretty cool.

** My kid sister used to bug me for things.  And the more she pestered, the less likely I was to accede to her requests in a timely manner.   Foreign bureaucrats can be a lot like that.

 

 

 

Wikimedia Commons

Ninety days.  That’s how long you have to serve your defendant, counsel.  If you don’t get it done, your case is dismissed.

Put another way… cross a certain line on the calendar without progress, and your claim is dead.

Ah, but wait!  The defendant is overseas, and Rule 4(m) says the 90-day deadline doesn’t apply!  I have to follow the Hague Service Convention, and that means months or years to get a proof back.

Well, that’s true (and I’m giddy that you recognize the mandatory nature of the Convention).  But that doesn’t mean you have unlimited time.  Rather than a hard deadline to serve, you’re subject to a reasonable diligence standard, which is usually interpreted to mean that you have 90 days to file a request with a foreign Central Authority.  If you don’t even try… dismissed.  [For a real world illustration, see Ted Folkman’s post on State Farm v. Amazon from last fall.  For some higher authority: Nylok Corp. v. Fastener World Inc., 396 F. 3d 805 (7th Cir., 2005).*]

Bottom line:  don’t drag your feet.

It ain’t rocket surgery.  Although it’s easy to get tripped up by intricate details here & there, getting a Hague request filed is not such an arduous task, especially when you can consult with other lawyers (hint, hint) who do this sort of thing regularly (I’m not the only one).

Now, to be sure, 4(m)’s automatic safe harbor doesn’t necessarily exist at the state level.  Many states’ procedural rules do track the FRCP directly, or with just a bit of variance (say, 60 or 120 days instead of 90).  Others have fairly liberal rules that allow extensions for good cause– and what better cause than a mandatory mechanism that requires counsel to rely on the caprices of a foreign sovereign?  Still others, especially New York, lack a codified safe harbor but reach the same result with case law.**

Only in Michigan and Wisconsin is the issue problematic… there’s no wiggle room in their respective rules.  Must be something about making beer and Buicks that warrants a hardline rule.   (Hey, Badgers and Wolverines and Spartans… I’m looking for a test case that runs into the deadline buzz saw up there.  I think I may have a good argument to carve out an exception.)

Elsewhere, rest easy– but not so easy that you’re deemed dilatory (yeah, I had to Google that one the first time I heard it).  Even though you have safe harbor, it doesn’t stay safe forever.

 

Yes, I know it’s summer. Watch this movie anyway. It’ll brighten your mood.

* Nylok was decided when 4(m) required service in 120 days.  The Rule has since been amended to 90, but the same analysis no doubt applies.

** The New York view on the matter is beautifully illustrated in Bumpus v. NYC Transit Authority.  CPLR 306-b requires service in 120 days, but Bumpus specifically acknowledges circumstances beyond the plaintiff’s control, including the delay caused by Hague strictures.  [Bumpus also specifically reminds me of A Christmas Story, so it’s incredibly easy to remember the citation.]

THEY HAD A MAGAZINE NAMED AFTER THEM!

A bit of 4L stuff here– the stuff they never mentioned in Civ Pro class* because it was so basic as to be assumed [ahem, we all know what assumptions do].  Your assigned readings today are limited (mercifully) to Fed. R. Civ. P. 12, with particular focus on 12(b).  Be prepared to discuss the rule in a sadistic Socratic “rolling boulder” scenario.

The topic: motions to dismiss, both (1) generally speaking and (2) more specifically as they relate to defendants located abroad.

To distill the issue… when a plaintiff files a lawsuit, defense counsel is duty-bound to find a way to get that thing kicked out of court in the most expeditious way possible, without fanfare, and at a minimized cost to the client(s).  In federal court, the “Magic Seven Defenses” of Rule 12(b) can be asserted by motion prior to a responsive pleading, and they usually appear in a motion to dismiss.  My favorite of the seven is 12(b)(6), affectionately known as the Rolling Stones Rule: failure to state a claim upon which relief can be granted, or, if you’re a fan of Sir Michael Jagger and his merry band of minstrels, “I can’t get no satisfaction.”  It’s my favorite because when I write blog posts, I tend to fall down very enjoyable YouTube holes with classic rock playlists.  But I digress.

A 12(b)(6) motion really doesn’t relate to many transnational issues, unfortunately.  It really boils down to whether the plaintiff has made a prima facie case that, yes judge, you’ll have something to go on here.

Really, two 12(b) defenses loom large in matters involving foreign** defendants: 

  • 12(b)(4), insufficient process; and
  • 12(b)(5), insufficient service of process.  

I delved into 12(b)(4) issues earlier this month in “Removal and the Timing of Hague Service Convention Requests, Real World,” and it touches on the subject of last week’s rant, so I won’t belabor the point here.  Essentially, the wheels fall of a case when you don’t serve the right documents– in the removal case discussed earlier, the plaintiff initiated Hague service of a state summons & complaint long after the case had been removed to federal court.  The judge wasn’t happy, because Hague service takes a while, and when you fail to include a federal summons and removal order, it unnecessarily delays the proceedings.

But 12(b)(5) is the big one in transnational practice, and it smacks plaintiffs’ attorneys pretty hard when they try to circumvent Hague doctrine.  In short, if a defendant (1) is located in a country that is party to the Hague Service Convention, and (2) you have to serve them in that country, rather than here in the U.S., the plaintiff MUST adhere to Hague strictures.  No exceptions.  See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

Now, this means different things in different countries– under certain circumstances, you can use private process servers in most common law jurisdictions.  In most civil law systems, you’re limited to a specific request to a designated Central Authority.  But let’s say you desperately want to get things done within the ordinary 90 days*** and you hire a guy to serve a Chinese corporation.  Service in China takes prit’ near forever, so you cut to the chase by having your guy walk into the defendant’s office in Shanghai and drop the documents on the corporate secretary’s desk.  Allowable under Article 10(c) of the Hague Service Convention, right?

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wrong.  Not only is the guy you hired now subject to criminal charges and likely to serve a lengthy stint as a guest of the Chinese penal system, you’ve also failed to recognize China’s objection to Article 10.  It simply ain’t so.

But now the defendant is aware of the claim, and has some very appealing strategies before it.  In all likelihood, the Chinese defendant will simply ignore your notice, content in the knowledge that it wasn’t properly served.  There’s not a chance in hell that an offshore court will ever enforce a default judgment, given your complete disregard of China’s exclusive sovereign authority in serving process.  But only slightly less effective a strategy: they can 12(b)(5) the hell out of your complaint.  [Yes, a rule citation is now a verb.]

The ultimate effect of a 12(b) dismissal varies, of course.  It may just mean you get to tee up the ball again and do it properly, if the judge dismisses sans prejudice, but your client probably isn’t too impressed with your performance.  Far worse, though, is dismissal with prejudice or expiration of a statute of limitation.  This is not the best outcome.

The bottom line:  the time to be wary of 12(b) motions is when you draft the complaint.  Be sure cross-border issues inform that wariness.

 

* Truth be told, we actually did spend an entire day on 12(b) motions in Civ Pro way back in the day.  Context was key, though– I really didn’t grasp the concept until a friend connected the dots to the Rolling Stones.

** Foreign in the “you need a passport to go there” sense.  Not in the “cross State Line Road to get there” sense.  It’s a term of art with two meanings– oddly enough, I mean the more colloquial of the two!

*** A related issue:  Rule 4(m), which governs deadlines for service.  I discuss the time issue pretty frequently, but this post delves into it specifically.  In short, 4(m)’s 90-day service deadline isn’t applicable to service on defendants outside the U.S.  This doesn’t grant unlimited time, of course.  Rather, a reasonable diligence standard applies.  As long as a plaintiff gets a request submitted to a foreign Central Authority within 90 days, it’s all okay.  If not…

This is Ned Stark

 

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).  June 15, 1988, to be precise– thirty years ago today.

On the anniversary of the oral arguments last March, I wrote a bit more, but today is the anniversary of the opinion, written by Justice O’Connor, with all nine agreeing about the result (if not the specific holding).  In short: if you have to serve a defendant in another Hague Service Convention country, and if the Convention applies,* you have to abide by it.  Period.

It’s the bedrock of my practice, and it’s fun to be one of the few people who know it and work with it regularly.

* Don’t know the defendant’s address?  Don’t worry– the Convention doesn’t apply.  But then you’ve got bigger problems than a treaty.  So, email?  Maybe.

This guy *still* can’t serve for you in China.  Even if a contract says so. (Chengsbroethers, via Wikimedia Commons.)

An interesting case popped up on my newsfeed this afternoon (hat tip to Hwan Kim, writing for Sheppard Mullins’ Construction and Infrastructure Law Blog): Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd., handed down by the Second District, California Court of Appeals.  The parties, one an American company, the other Chinese, had agreed in their contract that in the event of a dispute they would accept service by FedEx.

Oops.

You already know how this is going to go.  A dispute arises, the Yanks use FedEx to send process to the Chinese defendant, the Chinese don’t answer, the Yanks get a default, hilarity ensues.

Except there’s nothing funny about it.  Right now, the Chinese Central Authority is taking well over a year to serve defendants pursuant to a Hague Service Convention request.  But you can’t just use FedEx because it’s quick & expedient and the package absolutely, positively needs to get there overnight needs to get there in fewer than three weeks.  The Court of Appeals got it right; using FedEx was manifestly wrong given China’s objection to Article 10(a).  And if you dig even deeper, that’s because a Chinese party lacks the capacity to accept process that isn’t served by a Chinese court official.

What the drafting attorneys didn’t realize is that you simply can’t do it by mail– the Hague Service Convention controls, and the “postal channels” option is only allowable where the destination country doesn’t object.  More likely, the Chinese company’s lawyers knew exactly what was going on, and the U.S. party’s attorneys were unfamiliar with the Chinese government’s declarations to the Convention (they object!).

To be blunt…

No, Article 10 doesn’t give you an out in China.

Two thoughts come to mind— two easy methods which I’ve addressed before, multiple times, and which would have prevented this fiasco and saved everybody a whole lot of heartache– except the Chinese defendant:

1.  Designate an agent for service.

Addressed initially in Five Essential Things… and later, elaborated on in the aptly titled Five Essential Things– Elaborated, Part 1: Service Agent.

Had the contract directed service to the Chinese party’s counsel or other appointed representative in the United States, there’s no occasion to transmit the documents abroad, so the Convention would not apply.  Those are the magic words straight out of Article 1.*  It’s perfectly legal; in fact, it’s the whole bleepin’ point to registered agents.  And it’s easy, too.  Look no further than Dover, Delaware, where you can’t throw a rock without hitting a registered agent of one sort or another.

Sure, this may be a challenge, depending on the foreign party (a challenge getting them to agree, that is).  But it would avoid the jurisprudential problems that the Rockefeller Tech agreement ran into.

2.  Contractually agree to waive service.

Addressed in “Waive” vs. “Accept” service… massive difference, addressed in Serving Overseas: The Carrot and Stick of Waiver.

There really is a massive difference between the two ideas– and in federal court, defendants are required to waive, even if they’re overseas.**  Again, if the offshore defendant waives, then there’s no occasion to transmit the documents abroad; magic words again, Hague inapplicable.

Sure, you’ll probably have to duke it out over the refusal to waive, and thus will probably have to serve anyway, but at least it’s better than flying blind.

In short, don’t throw that “we agree to accept service by FedEx” clause into a contract when you can’t reasonably predict that it’ll be enforced.

* As the Rockefeller Technology court points out,”(the present Convention shall apply in) all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  Pretty straightforward, and the heart of the seminal case in Hague Service Convention doctrine, Volkswagenwerk Aktiengesellschaft v. Schlunk.

** Rule 4(d)(1):  “An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.”  Lest ye rely on 4(d)(2) to refute that idea, recognize that 4(d)(2) is about mandatory fee shifting, which only applies to domestics.  The tricky detail of 4(d)(1) is that it specifically mentions 4(f), which only applies to service abroad.

He’s grumpy. But he calls the shots. Not some smart-mouthed fellow from out of town.

It’s pretty routine that a client (always someone from a law firm– lawyer, paralegal, or assistant) asks “okay, Aaron, what documents do you need to serve these guys?”

My response is always, “you tell me.”

They ask a completely reasonable question, but it’s based on unfamiliarity with the Hague Service Convention more than anything.  Frankly, I’m glad that not everybody has a complete understanding of the treaty and its application, or I wouldn’t be doing what I do, but I hope this clears up any doubt:

Hague Service Convention doctrine only governs how documents are served– not what documents are served.

With one exception,* the Convention addresses manner– not content.

The “what” question is determined by the rules of the court hearing the case.

To illustrate, let’s say you file a case in federal court in Kansas City (W.D. Mo.).  You have two local defendants in KC, one in Chicago, and one in Geneva, Switzerland.  Setting aside the fact that everybody is obliged to waive [including the Swiss defendant], the same documents have to go to everybody.

  • The summons?  Of course.
  • Complaint?  You bet.
  • Exhibits?  Absolutely.  They’re part of the complaint.
  • Civil Cover Sheet?  Hmmmm… maybe, maybe not.
  • ADR Program Guide?  I don’t think so.  Could be, possibly?
  • Judge Chamberlain Haller‘s Rules of Civility?  Depends on His Honor’s mood, which is usually sour.  Let’s face it– he’s a grumpy bastard until he verifies your admission to the bar and figures out that you’re not wearing that ridiculous tuxedo out of disrespect.  And even then…

Well, what say the rules?  Serving certain things as a matter of common practice doesn’t make it mandatory to serve them.

Rule 4 is pretty succinct:  A summons must be served with a copy of the complaint.  [That’s 4(c)(1).]  An exhaustive list there.  It does not specify the CCS, ADR guide, individual judges’ rules, or any other documents.  Summons, complaint, period [just remember– exhibits are part of the complaint].   But look to local rules to see what ancillary documents, if any, are required (this is especially dicey at the state level).  Regardless of forum, I can’t tell you what has to be served.  That’s up to you to determine.

Back to our illustration… W.D. Mo. Local Rules don’t mention anything extra (at least, I don’t see anything there), so the summons & complaint are sufficient.  Even if Judge Haller is a grumpy bastard, he’s a stickler for the rule book, as a certain Mr. Gambini of Brooklyn found out the hard way.**

But let’s say the case was filed in a different district, or maybe state court.  Again, look to that specific court’s rules to determine what else is necessary.  Then, recognize that if you have to serve X, Y, and Z on a U.S. defendant, you also have to serve X, Y, and Z on an overseas defendant.  Your guy in Switzerland?  He gets the same papers as the guys in Kansas City and Chicago.  With a catch: not only do you have to request service via the proper Swiss Central Authority (the Tribunal de première instance in Geneva), you have to translate everything into French, regardless of the defendant’s competence in English; and elsewhere in Switzerland, it might be German or Italian.  The lesson to bear in mind there?  Brevity is the soul of wit, counselor.  So keep it short.

The bottom line:  again, Hague doctrine governs how documents are served.  Not what documents are served.  But that simplifies things quite a bit.

 

* One huge, glaring exception:  subpoenas– which aren’t even truly addressed in the Service Convention, because they aren’t covered by the Service Convention.  Subpoenas cannot be served abroad.  At all.  Instead, the Hague Evidence Convention controls, and that can be a sticky wicket for a U.S. lawyer seeking to compel production in another country.  See here for Three Cardinal Rules applicable to evidence compulsion.

** Yes, yes.  That was all about a criminal trial in Alabama state court.  Let’s just pretend Judge Haller moved to Kansas City and got bumped to the federal bench and sits primarily on the civil docket, m’kay?  [Over the past decade, UMKC’s CLE office has presented a My Cousin Vinny seminar at least four times.  It is far & away the most popular “Film & the Law” seminar in any year it pops up.  With very good reason.]

A hoverboard, of the type at issue in the case (this one is actually a counterfeit, seized by CBP agents in 2015).  Exploding batteries cause injuries & fires– see here– leading to myriad types of lawsuits.  (U.S. Government photo.)

Bloggers follow other bloggers, especially in the world of law, and one guy I follow religiously is Ted Folkman and his excellent Letters Blogatory.  Long before I started my own thing, I paid rapt attention to what Ted had to say, especially in his “Case of the Day” posts, and although we’re not always of the same mind, he’s been to the wars far longer than I have.  His May 22 entry  caught my attention in particular because the order he highlighted almost dismissed a Korean defendant because the plaintiff failed to serve the proper documents following removal to federal court.  The plaintiff now has to re-start the process of getting the defendant served, and incur additional costs.

Ted points out that a state court summons becomes a nullity upon removal.  Once the matter goes up to the federal level, the list of requisite service documents changes, often dramatically, which is why I urge my clients not to delay Hague service, primarily so that they can be certain of translation costs.  But State Farm v. Amazon* illustrates an even more costly risk: having to do it all over again, or be dismissed.  The court here declined to dismiss the case (which truly would have been inappropriate and wasteful), but it certainly illustrates the risk of having a case kicked before it even begins.

Let’s take a look at how the wheels fell off an otherwise straightforward Hague request to Korea, as well as one to Hong Kong and several to the People’s Republic of China.  Two issues come to mind…

Although the court didn’t fully address it, time restrictions are relevant– Federal Rule 4(m) and Arizona Rule 4(i) are effectively identical, and they require a plaintiff to serve within 90 days of filing, or the case is dismissed.  While the 90-day deadline is only applicable to domestic defendants, the safe harbor for serving abroad doesn’t grant a plaintiff unlimited time.  At least at the federal level, plaintiffs are subject to a reasonable diligence standard, which is usually construed to mean that if a Hague request is delivered to a foreign Authority by Day 90, the plaintiff has fulfilled his duty to keep the litigation moving.  Put another way, he isn’t held responsible for delays caused by the foreign Authority, because those delays are beyond his control.

This analysis was omitted for the most part in the most recent D. Ariz. order, and the plaintiff may well have been reasonably diligent with the timing, even though its vendor wasn’t directed to proceed until after 90 days had passed.**  But 4(m) isn’t such a big deal, given the judge’s attention to 12(b).  The court focused– erroneously, I think– on 12(b)(5), which permits dismissal for insufficient service of process.  Really, 12(b)(4) would be the more appropriate basis for dismissal, because it goes to the insufficiency of the process itself.  Here, there was no federal summons or removal order served– just the state summons & complaint.  But as the court points out, service was properly effected via Korea’s Central Authority.  The real issue was the content of the service.  State Farm simply didn’t send the right stuff to Seoul, so rather than dismissing, the court ordered it to tee up the ball again– this time with a new 90-day deadline.**

The bottom line:  had the plaintiff sent its Hague service vendor the proper documents, service would have been a rather pro forma exercise.  Now, the case is delayed by at least nine months.  It doesn’t matter if  a defendant is in Korea or Kalamazoo– a process server or Hague authority can only serve what they’re given.  As much as they (we) try to help ensure that everything is correct, the determination of what documents must be handed to the defendant is up to counsel, pursuant to the rules of the court.

Hague doctrines don’t determine what gets served– just how.

 

* Three important disclaimers:

  • I’m a State Farm client (home and auto– with a fantastic agent), but my client status is entirely disconnected from State Farm’s litigation unit.
  • I’m an Amazon Prime member (’cause free shipping, y’all), but my member status is entirely disconnected from Amazon’s litigation unit.
  • I was in no way involved in the case highlighted here, so I speak entirely from the outside.

** Of worthy note: there were several Chinese defendants (and one in Hong Kong) named originally, but even if the Beijing Central Authority had been provided the right documents last fall, they  wouldn’t be served yet for many months.  Under normal circumstances, I would have suggested that State Farm would be wise to re-initiate its Hague requests with the proper documentation, lest the court dismiss the case entirely, and with prejudice.  Oddly enough, though, Letters Blogatory already discussed the Chinese defendants in a post last fall— the first time this matter was the Case of the Day.  The court benchslapped State Farm in October for failure to do anything– anything, mind you– to initiate a Hague request in a timely manner, and dismissed the Chinese defendants accordingly.

*** I argue vehemently and often that attorneys should outsource their Hague work.  I’m biased, to be sure, but undertaking this sort of thing alone is not only unwise– it borders on dangerous.  That said, great care is critical.  Not every “vendor” is actually qualified to sign a Hague request, so Ted’s cautionary statement on outsourcing to “vendors” must be heeded.  The Hague request at issue was signed by Rick Hamilton of ABC Legal in Seattle, which is designated as the contractor for the United States’ Hague Central Authority function by the Department of Justice.  To say that Rick knows his stuff is understating things.

A few weeks ago, I posted a bit of clarification as to the proof form used by foreign Central Authorities to satisfy Article 6 of the Hague Service Convention (see The Hague Service Certificate… Not Necessarily On The Form You Provide).   When we send a USM-94 to a foreign Authority, we include a blank Certificate as part of the package.  Authorities use the provided blanks very rarely, opting instead to type out a new one from a Word document.  This is a good thing, because they’re cleaner and more legible than forms completed by hand, and no cause for alarm at all.  It really makes everybody’s job easier– the Central Authority itself, the Requesting Authority (me), my client (plaintiff’s counsel), and all of the folks at the court handling the case– the judge and clerks alike.

Last week, though, I fielded emails from three different clients, all with the same quandary related to the legal effect of the completed form:

Hey, Aaron, the Clerk rejected the Certificate you provided from the Central Authority.  They said that you have to fill out the proof of service form required by the court.

My response…

Ahem, no.  Lemme ‘splain…

For starters, most state proof forms indicate that the process server has to complete the form.  But I’m not a process server, and neither is the judicial officer in the other country who effected service at my request and upon the order of the Central Authority.  More importantly, though, U.S. state courts (and federal courts, for that matter) lack the authority to require a particular form of proof.

See, the Hague Service Convention supersedes state formatting rules.  And Article 6 of the Convention lays out how service is proved up:

The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.

The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.  (…)

U.S. law recognizes that Certificate as prima facie proof of effective service according to the Hague Service Convention and the foreign country’s law.  Northrup King v. Compania Productora Semillas, 51 F. 3d 1383, 1390 (8th Cir., 1995).  And one of my favorite parts of the Constitution steps in to seal the deal: that pesky old Supremacy Clause (Art. VI-2).

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

(Of course, emphasis mine.)

In all three cases my clients brought to my attention, I speculated that we just had a relatively inexperienced deputy clerk on our hands.  This Hague Certificate thing isn’t new, especially in larger jurisdictions like New York County Supreme or L.A. Superior.  B’lieve me, y’all… they’ve seen this stuff before, and they don’t reject them unless somebody misapplies the law.  A little nugget from Northrup King even limits the courts’ authority to question what lies behind the Certificate:  “We decline to look behind the certificate of service to adjudicate the issues of (the foreign country’s) procedural law…”

My read on that: if the foreign government says it’s served… it’s served.  Game over, kids.  If the 8th Circuit doesn’t feel competent to refute a foreign* Authority’s interpretation of its own law, I doubt a state court would be any more competent.  If the defendant contends that service wasn’t proper under the foreign country’s law, then they’ll have to duke it out in that country’s courts– not ours.

Bottom line:  A Hague Certificate is pretty much bulletproof, as long as it’s predicated on a valid request.  It’s not up to a state court to dictate how a foreign Authority effects service, and it’s not up to a state court to demand a particular form of proof.  The Convention already does that.

 

* Foreign in the “you need a passport to go there” sense.  Not in a “cross State Line Road to get there” sense.  I do so love terms of art.