One of the odd quirks about serving an offshore defendant is the very routine possibility that plaintiff’s counsel could be contacted by the defense before a foreign authority notifies anyone that service has even been effected. A hypo, to illustrate…
Dieter from Düsseldorf signs a contract with Pete from Peoria to supply Pete’s company with machine parts. Everybody knows that German manufacturers are incredibly efficient– while their machine parts are of outstanding quality– and Pete is thrilled to have a well-coordinated supply chain. The parts come as scheduled for about six months, when all of a sudden, bupkiss. Nothing. Nichts. Dieter doesn’t answer the phone, he ignores Pete’s frantic emails (DUDE, WHERE IN THE HELL ARE MY PARTS?!), and Pete has to furlough his entire workforce until an alternate supplier can be found. The obvious result, given Dieter’s recalcitrance? A lawsuit.
Pete’s lawyer, Larry, needs to serve the summons & complaint for damages on Dieter in Germany. He hires me to assist, and we send a properly formatted Hague Request to the Central Authority for Nordrhein-Westfalen. It arrives on the 8th of January, and the good folks at the Oberlandesgerichts Düsseldorf have service effected about a month later. On February 14th, Pete’s lawyer gets a curious email from a colleague, indicating that she represents Dieter and would like an extension of the deadline to answer.
Sure, Larry says. But… hang on a second.
My phone rings, and Larry asks if I can shoot him a copy of the proof of service on Dieter.
Nope, I reply. Haven’t gotten it yet.
Larry is justifiably perplexed, and Dieter’s lawyer thinks she’s got an advantage. [Gee, Larry, you don’t even know your defendant’s been served?]
Well, no. He doesn’t. He has no way of knowing because the Central Autority hasn’t told anybody. And this is perfectly normal, especially if the defendant is in China or Mexico or India (my trifecta of “this’ll take a while” countries).
- January 8– request arrives at the Central Authority
- February 8– service is effected
- February 14– opposing counsel contacts Larry
- March 11– a completed Hague Certificate lands in my mailbox
- An hour later– Larry has a PDF of the Certificate to file with the forum court
That sequence of events happens all the time, and it has no bearing on the effective date of service or the deadline by which a defendant must answer.
It also doesn’t subject the plaintiff to dismissal if the proof takes several weeks or months to come back from the Authority.* Rule 4(l)(3) is a nice safe harbor in this regard: “Failure to prove service does not affect the validity of service.” What seems to be a delicate situation really isn’t. Any time a plaintiff has to rely on the caprices and inefficiencies of a foreign bureaucracy, courts have to give them latitude (thus my affection for FRCP 4 and its recognition of Hague realities).
The takeaway from all this: relax. Proof is coming.
* I filed a request in India in September, 2017. The papers were served in November– a mere two months on, which is surprisingly quick in India. But the Certificate arrived over Labor Day weekend. That’s in September, for the uninitiated. A full ten months elapsed before the plaintiff could prove that the defendant had been served.