Service of Process Abroad

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[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… 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.  How about Twitter?!