Service of Process Abroad

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An interesting story hit the blogosphere a couple of weeks ago (see “MtGox’s US customers try to find Mark Karpeles” over at the FinanceFeeds blog).  I won’t pretend to understand the mechanics of the case discussed– the Bitcoin phenomenon and the MtGox security breach lie far outside my expertise, and frankly, the whole concept is pretty complex and I don’t have the time to give it reasonable study.  Suffice to say that this case is a classic illustration of just how complex cross-border finance and cross-border litigation have become.

A particular paragraph in the post caught my eye:

Karpeles is a French citizen believed to be living in Japan, so service upon him is governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. In order to effect service under the Hague Convention, a physical address is required.

Well, sort of.

Er, not exactly.

Wait… no.  That’s not right at all.

It is correct that in order to effect service under the Convention, you have to have an address.  But service on Karpelès is not “governed” by the Hague Service Convention unless and until the plaintiffs know his whereabouts.  He is merely believed to be living in Japan.  By its own terms (Article 1), the Convention doesn’t apply “where the address of the person to be served with the document is not known.”

In short, if the fellow can’t be found after a diligent search, adherence to the strictures of the Convention is unnecessary.  Frankly, adherence is impossible, because the primary bit of information necessary for a service request to a Hague Central Authority– Japanese, French, or otherwise– is where to find the guy.

So what is a litigant to do?  Well, do what the DNC did earlier this month: use Rule 4(f)(3) to serve him electronically (see my recent post “Twitter Service Hits the Bigtime“).  Or ask the court to appoint his U.S. counsel– if indeed he has counsel here**– as his agent for service, then serve him under 4(e)(2)(C).

The FinanceFeeds post went on to say that…

The Court agreed that the time for Mr Lack to file Proof of Service on Defendant Mark Karpeles should be extended to and through October 31, 2018.

That tells me that none of the lawyers in the room (including the judge) are reading the whole of Rule 4(m), the basis for the standard 90-day deadline to serve a defendant.  The last sentence of 4(m) is a beautiful little safe harbor for plaintiffs seeking to serve abroad:  “This subdivision (m) does not apply to service in a foreign country…”  [Emphasis mine.] *

Now, that doesn’t mean a plaintiff has unlimited time to get the job done– a reasonable diligence standard applies– but it does negate the need to extend anything.  The plaintiff merely has to not be dilatory (I had to look that up once) in his efforts to serve.  Yes, keep the court updated on your progress.  Yes, make sure the judge knows what you’re up against.  Don’t give up on the effort.  Just know that an ordinary extension of time isn’t necessary.

The takeaway from all this?  Not all is lost if a defendant can’t be located, and the Federal Rules of Civil Procedure account for that.

* At that, even assuming the plaintiffs do find an address, they shouldn’t expect a proof of service by the end of October.  Serving in Japan has been taking longer than normal lately– and “normal” is four months, at best.

** UPDATE (a day after posting):  Within hours of my post, up pops another FinanceFeeds article about this defendant, but in a different suit in N.D. Ill.  Apparently, yes, he does have U.S. counsel.  And the ability (not to mention, obligation) to waive.

The very boots. This image is tastefully cropped & zoomed so as to not appeal to prurient interests.

[Author’s Note:  In a bit of sad irony, my initial draft of this post was written just as news of Kate Spade’s suicide broke on June 5th.  Honestly, I knew very little about her except that she (1) designed handbags and (2) is a local icon here in Kansas City.  She grew up here, and attended high school a mere two miles from my house.  As I’ve come to find out, she brought some Midwestern sensibility to the fashion game, and thus made a pretty big impact on a pretty big industry.]

I’ve attended a lot of CLE lectures over the years, but the best one I ever saw was overseas.*  All of the best ones are connected to some sort of long flight, because if you’re in Rome or Paris or Istanbul or Oxford, how bad can the lecture possibly be?  Just the setting alone makes them interesting.

Until a few years ago, I had no idea that “Fashion Law” was even a thing.  I doubted highly that designer clothes mattered even a bit in the great grand scheme of the universe.  Then I heard my friend Layne Randolph‘s lecture on trademarks and trade dress, and I was astounded to discover that, not only was this really “a thing,” but the thing matters– immensely.  I simply hadn’t ever contemplated the economic value of high-fashion brands.  I’d always viewed Ralph Lauren and Kate Spade and Vera Wang and Manolo Blahnik as a just bunch of fussy/snooty people that were waaaaay too proud of themselves and their work-product.  It didn’t help that I’m a big guy, and fashion houses aren’t exactly beating my door down, begging me to buy their stuff.  It also didn’t help that many years ago, an ex-girlfriend routinely forced me at emotional gunpoint to watch Sex & The City with her.  I hated every excruciating moment of it, and I hated fashion designers by association.

But Layne’s presentation was awfully compelling.  As a newly minted J.D., I found the just-filed Christian Louboutin suit against Yves Saint-Laurent an excuse to pay attention to her query: whether Louboutin’s iconic red soles were protected as a mark or dress.  It was a pretty compelling legal question.

You learn something new every day, right?

Well, a few weeks later, I plunked down nine dollars to see the third and final installment of the Men in Black series.  In the opening scene, a rather curvy alien woman walks down a hallway in a super-duper-maximum-security prison on the moon (hey, I didn’t write it) to spring her boyfriend/boss, one of the guys from Flight of the Conchords (I said I didn’t write it).

Of course, movies these days are all about prurient interests, so the very first action shot is of the bright red soles on the woman’s thigh-high boots as she walks away from the camera while it slowly rises to a very high-cut leather mini-skirt and…  well, you get the idea.  Just what every twelve year-old boy wants to see at the movies.

Being a twelve year-old boy myself (our bodies age, but our brains’ development arrests in the 7th grade), one would think I’d follow the camera and enjoy the highly inappropriate objectification of a woman’s body.  Nope.  I was fixated on those crimson soles and the legal issues surrounding them.  I wondered how many lawyers were involved in the licensing agreement that Columbia Pictures needed Christian Louboutin’s people to sign, just for that one shot, and w0w, what a waste, because the product placement value of this particular trade dress in a scene targeted to twelve year-old boys is…

This one would be a tough one to go after. Serving in India is a bear.

Dammit.  I’m an adult.  And a lawyer to boot.  (See what I did there?)

Now that I handle service abroad nearly full time, I still can’t watch that movie and not ponder the procedural implications.  What if a Dutch company decides to make a cheap knockoff of the same boot?  What are the procedural hurdles?

Well, watch the latest Louboutin kerfluffle unfold and you’ll find out.

In short, y’all, the world has reached globalized status, and all the ire the Tea Party can muster is not enough to put the Genie back in the bottle.  Litigation crosses borders more now than ever, and although we lawyers like to think the law has streamlined itself since the dawn of the internet age… nope.  Not as much as you might think.  In much of the world, service of process is still effected in the same manner it was in 1965, when the Hague Service Convention first came about.  The treaty is still mandatory, and it’s still exclusive doctrine, so trademark and trade infringement suits must still be properly served.  Pay attention to detail.  It matters.


* Shameless plug:  UMKC Law hosts a couple of CLE Abroad programs every year, and I have the privilege of speaking on many of them.  The trips are a whole bunch of fun… and potentially deductible.**

** You bet your sweet bippy there’s a disclaimer on this one.  I’m not a tax lawyer and, if you’re reading this, neither are you.  So seek specific professional advice on whether you can deduct an overseas CLE trip (or how much of it you can).

[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.  The obvious irony here is that I’m using two images of the great actor Sean Bean which, although developed in satire, are blatant rip-offs.  My hope is that I’ll be forgiven, given my ardent and emphatic recommendation that my readers go back and watch The Lord of the Rings and Game of Thrones— at least Season One.  If that’s unacceptable, I will readily cease & desist.]

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 a copyright lawyer– I don’t do immigration.  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.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle copyrights exclusively, no visa applications ever.  What if some random website hosted somewhere overseas decides that “all your base are belong to us,” rips off your client’s content, and publishes it as their own?  Your client justifiably seeks proper attribution and compensation, but the infringing party refuses to cooperate. So you sue.

But don’t you think you might have to serve the publisher?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, if you’re going to serve in a foreign country, odds are quite good that the Hague Service Convention applies, so you’ve got to figure out what options are available to you.

Next, you may have to set up a translation of the documents.  Never mind that the stolen copy is in English– so the bad guys must understand English– foreign translation requirements aren’t focused on the defendant’s comprehension.  They’re focused on the foreign officials handling the documents.

Then ask the appropriate Central Authority for help.  And pray that you’ve filled out your USM-94 correctly.  [That’s a big one.  Very important, the USM-94.]

If you don’t get them served…

This is Ned Stark.

You’ll have a tough time getting the copy attributed to your client without that defendant.


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.]

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 patent lawyer– I don’t do immigration.  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.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle patents exclusively, no visa applications ever.  What if some offshore bad guy (let’s call him “OBG” for short) decides that “all your base are belong to us” and starts making your client’s widgets with his own name on them?  Your client, who sacrificed an incredible amount of blood, sweat, and tears** to invent– or an incredible amount of money to buy the rights to– the widget, wants to sue.  Now.

Well, don’t you think you might have to serve the offshore bad guy?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, for most of the world, start off by looking up the Hague Service Convention.  It’s mandatory doctrine if you need to serve OBG in his homeland.

In all likelihood, you’ll have to set up a translation of the documents– and that’s a big deal with patent cases, so here’s a handy guide on how to keep those costs down.

Then, you’ll have to determine what alternative methods are available.

Then, if you go the Article 5 route, ask the appropriate foreign Central Authority for help.

Last, pray that you’ve filled out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

If you don’t get him served…

This is Ned Stark.

You’ll have a tough time making the patent-holder whole.


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Apologies to a certain Mr. C of Blenheim, Oxfordshire.  The original quote included “blood, tears, toil, and sweat” but a 1970s fusion band morphed it a bit for brevity.

Two years ago, I wrote about the “coming of age,” if you will, of service by electronic means.  Well, the idea just hit the bigtime with service on Wikileaks via Twitter.

Setting aside questions about properly identified defendants (read: properly named entities and individuals associated with them), his one seems to fit squarely with a Rule 4(f)(3) alternative.  That is, the legality of it seems okay.

If Wikileaks has an address, it seems for the moment that company HQ is inside the Ecuadorian Embassy in London– a mere 20 miles from me as I write this.*  This could mean either of two governing regimes controls: the Hague Service Convention or Rule 4 alone.

If the Embassy is viewed as Ecuador’s sovereign territory, no mandatory treaty governs manner of service.  If it’s not (and the UK apparently takes this view), Hague channels just aren’t tenable.  No process server is getting in the gate, and neither is an English judicial official.  Mail is silly to even contemplate, whether sent from the clerk or from the UK Central Authority– it’s a non-starter to think Julian Assange is going to sign for a FedEx delivery from either.  (UK service under Article 5 is usually mailed.)

So, what’s a court to do?  Authorize an alternative means that, under the circumstances, is reasonably calculated to put a defendant on notice of a claim against it– and offers an opportunity to defend.**

That’s the constitutional standard, and it seems to have been met here.

Now let the substantive arguments begin.  (There are some whoppers to come.)


* My last dispatch from England this trip… ironically a trip to discuss Hague service with colleagues from the UK and the US.  I write this from a bus on the way to Heathrow.

** See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) for the full discussion.

The mind just reels.  I’m in England at the moment, and an England issue has come up that I cannot bear yet again without a rant.  Forgive me…

Lawyers, stop taking legal advice from non-lawyer process servers.  Just stop it.  That goes double for non-lawyer process servers in other countries.

Seriously– it’s like an MD taking diagnostic direction from a CNA.  Sure, the aide is a vital part of the medical team,* and they do some amazing work.  But if things go badly, the malpractice suit isn’t coming at the aide.  Yes, the physician has to rely on the aide’s input, and the aide may be incredibly talented at carrying out a treatment plan, but the responsibility of decision lies with the person with all those fancy diplomas on the wall.

Twice in as many weeks, I’ve had U.S. lawyers call me to ask how much it costs to have a defendant served in (England, India), and I unabashedly tell them what I charge.

Oh, that’s too much.  I’ll just go directly to a process server.  I emailed a guy in (London, Bangalore)– he tells me it’s no sweat– he can fix me up for about what my local guy charges me.

So this is me, for a moment…

Ahem, no.  It doesn’t work that way.  In either country.  The Hague Service Convention governs both scenarios, and both countries’ declarations are pretty straightforward on how to effect service.

Options in ENGLAND:
  1. Article 5 request to the Central Authority.
  2. Mail, under Article 10(a)… almost always a bad idea.
  3. Private Process Server, Article 10(c).

But the UK position on Article 10 carries a caveat: using a process server is only valid if that process server is instructed by a solicitor.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.

Options in INDIA:
  1. Article 5 request to the Central Authority.  END OF LIST.
  2. THERE IS NO OPTION TWO IN INDIA, despite what India-based process servers may tell you.

The truth is, India is one of the few common law jurisdictions that doesn’t have them except in rare circumstances.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.  A guy in Bangalore saying he’s a process server is a bit like an Über driver  in New York saying he can fly you around in his drone.  Yeah, it’s theoretically possible, but… jeez.  Come on.

So why would one of those folks overseas make claims like these?

  • Oh, yes, we can serve those documents in Gujarat for you.  Nooooo problem.
  • No, you don’t have to worry about the Hague Service Convention.  Nobody here takes it too seriously.
  • We’re a common law country, just like you.  We do things the same way you do.
  • Of course I can take instruction directly from you, mate.  You’re a lawyer, right?

Why do you think they make such claims?  Because they have a commercial interest in convincing you to hire them instead of a U.S. lawyer who handles this sort of thing all the time.

But here’s the huge difference: a U.S. lawyer who handles this sort of thing all the time is actually cognizant of (and concerned about) compliance with U.S. law as it relates to the treaty.  We actually understand that Sandra Day O’Connor’s thoughts on the matter are a bit more valid than those of the fellow in London or Bangalore.

The takeaway from this rant?

  • In England (and Wales), make sure your process server understands that his/her affidavit must (1) demonstrate that Hague doctrine has been observed, and (2) reflect that s/he is instructed by a solicitor.
  • In India, don’t even bother.  You’ve got to make an Article 5 request to Delhi.

Oh, and if you try pulling this stunt in China… you and the guy you hire are subject to arrest and imprisonment.

I hear the food’s not very good in Chinese prisons, so good luck.

 


* I use this analogy carefully– my grandmother was a nurse’s aide, and she was the most competent caregiver I’ve ever known.  This post is not about whether process servers know their stuff.  They do– and I have several that I rely on regularly.  But legal analysis isn’t their stuff.

** The Hague Service Convention– including a foreign countries’ declarations to it– constitutes supreme U.S. law, which particularly overrides conflicting lower law.  That pesky old Supremacy Clause strikes again!

Have fun, y’all…

Thinking back to Business Organizations class (because calling it “Corporations” doesn’t go far enough), one of the most important lessons I picked up was the importance of properly naming defendants in a lawsuit.*  Just as you wouldn’t call a defendant Daniel when her name is Danielle, don’t call it the XYZ Corporation if it’s really XYZ LLC.  When you boil it all down, that’s the entire point of BusOrg class– parsing the differences between the various alphabet soup combinations that make up the American business landscape.**

But broaden that to the world beyond our borders, and you’ve got problems if you don’t have a handle on the soup.  Fortunately, you’re not completely on your own.  Thanks to Jimmy Wales‘ favorite product, it’s pretty easy to look up.

While I would never advise anybody to cite Wikipedia as an authority– legal, academic, or otherwise– the value of the platform as a research tool is hard to overstate.  There’s a great Wiki on types of entities around the world, broken out by country.  My favorite of all time is the Aktiengesellschaft (AG), a German corporation.  Close second: Gesellschaft mit beschränkter Haftung (GmbH), a German LLC.

Say either of those ten times fast.  G’head… it’s fun.

Of course, you’ll have to observe the Hague Service Convention as you’re haling these outfits into court, but once you’ve named the defendants in the caption, use the Wiki to describe the defendant in the “Parties” section of the complaint:

  • Volkswagen AG is a German corporation.
  • Robert Bosch GmbH is a German limited liability company.
  • Airbus SE is a corporation organized under the laws of the European Union and headquartered in Toulouse, France.
  • Airbus Helicopters SAS is a French closely held corporation and a subsidiary of Airbus SE.
  • Angela Merkel is the German Chancellor and the subject of a hit Broadway musical.  (Okay, she’s a natural person, which is not defined in the Wiki.)

Just as you mustn’t confuse Inc. or Corp. with LLC, you mustn’t confuse AG with GmbH, or SA with SàRL… you get the picture.

And on the subject of pictures, cruise over to RedKid.net’s soup meme generator and make your own message in noodle lettering.  Just keep it clean, m’kay?


* Yet another hat tip to my BusOrg professor, Tony Luppino.

** In an exceedingly ironic twist, two hours after writing the initial draft of this post, FedEx Freight showed up at my door.  “Is this Viking?” the guy asked.  Yeah, says I, as he tells me he has a single skid to offload (You mean a pallet?!  OF WHAT?).  Turns out, it was a pallet of valves bound for Viking Group, Inc. (twelve miles away) instead of Viking Advocates, LLC.  Poor guy was given the wrong address on the manifest because somebody didn’t take BusOrg.

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… SwitzerlandWait– 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.