Every once in a while, a colleague will call me with a story similar to this one:
“A client just walked into my office three days ago with what looks to be a rock-solid case. We can establish duty, breach, causation, and damages* without a whole lot of difficulty, but the defendants are in Beijing and Toronto. The statute of limitation runs next week, so we’ve GOT to get them served before then or we’re out of luck.”
Relax, I say. Continue Reading Time to file versus time to serve
The most frequent sort of question to hit my inbox of late has been from lawyers all over the country, looking for a referral to foreign counsel. Foreign in the “you need a passport to go there” sense, rather than in the “across State Line Road” sense. Continue Reading Finding Foreign Counsel
Civil defendants in federal court are obliged to waive service. All of them, with the notable exception of various governments. I give you 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.*
(Emphasis added.) Seems pretty simple to me. Continue Reading Rule 4(d) waivers and fee shifting
In order for the Hague Service Convention (HSC) to govern the legal formalities of notifying defendants of claims against them, you’ve got to know where the defendant can be found. An address is critical to service anywhere, on any defendant, but it can be particularly challenging when it comes to serving U.S. servicemembers stationed abroad– as well as when it comes to serving their dependents* or civilian support staff stationed with them. It’s especially daunting when those folks live on a U.S. military installation in Germany or Italy or Japan or… any number of other far-flung locales. Continue Reading Hague addresses: APO and FPO don’t qualify.
No, really. I’ve argued ’til I’m blue in the face that Hague mail service is a bad idea. Sure, it might be perfectly valid from a legal perspective, but factually… oy vey, you got problems, friend. Continue Reading Service by mail just became an even worse idea.
A couple of years ago, I posited in “Removal and the Timing of Hague Service Convention Requests, Real World” that not only must service be effected properly, but the contents of the service packet had to be proper as well. I discussed a case in which State Farm* sued a Korean defendant– among others– in state court, but one of the defendants removed the case to federal court before State Farm’s counsel initiated Hague procedures in Seoul. The state summons was served instead of the appropriate federal summons, so the defense had a beautiful 12(b) motion to dismiss. Ultimately, the case wasn’t kicked, but it could have been. Continue Reading Civ Pro for 4L’s: Removal and Service of the Correct Summons
Two white whales are the subject of my Captain Ahab diatribes in this space. One concerns an issue of cross-border civil procedure, while the other concerns a rather goofy* interpretation of what the rest of the world views as plain language. I address here the latter of the two: the concept of a child’s habitual residence. Remember those words, friends, because the U.S. Supreme Court held unanimously today that the term habitual residence should be analyzed under a totality-of-the-circumstances test.
In Monasky v. Taglieri, the Court held that a child’s habitual residence depends on the totality of the circumstances specific to the case, not on “categorical requirements.” Continue Reading Hague Convention Habitual Residence
We aren’t building rockets here. But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination. Serving process in Malta is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. This chain of islands, a former British colony off the southern coast of Sicily, isn’t just the site of a boat race in Season 1 of The Crown. It is also home to stunning scenery, bright sunshine, and a wonderful blend of English, Italian, and North African cultures. Malta is a relatively new member of both the European Union and the Hague Service Convention– and service of documents is fairly straightforward. Continue Reading How to Serve Process in Malta (updated 2024)
Last week, in “Wrong reasoning, right result?“ I ranted a bit– criticizing the latest in a nationwide string of wrong decisions involving FRCP 4(f)(3). At issue: whether courts can authorize service by email on defendants located in Hague Service Convention countries that object to Article 10(a).
My view is awfully straightforward– if the Convention applies, and the destination country objects to 10(a), then Nein. 没有。Нет. ほぼ。 幾分。
Not no, but hell no.* Continue Reading RIGHT reasoning, right result.
Just off Australia’s east coast lies a gorgeous chain of islands known today in large measure for its huge population of Elves, Orcs, and Dwarves (and one very grumpy little fellow). Before New Zealander Peter Jackson filmed his Lord of the Rings and Hobbit trilogies, New Zealand was famous primarily for (1) the Māori Haka,* especially performed by its powerhouse All Blacks national rugby union team, and (2) sheep. LOTS of sheep. Oh, and then there was this guy. Continue Reading How to Serve Process in New Zealand
