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 really covered by the Service Convention.  Subpoenas cannot be served abroad– at least not with coercive effect.  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.]

Add me to the list of Bourdain fans who loved the guy, but who weren’t really in love with the guy.  By his own admission, he was kind of a jerk, and you’d understand if you’d read Kitchen Confidential.  But man, I loved his shows.  All of them.  A Cook’s Tour.  No Reservations.  Parts Unknown.  The Essence of Em… no, wait.  He hated Emeril (but that’s another story).

I awoke this morning to the news of Tony’s apparent suicide during a shooting trip in Strasbourg, France (yes, fans call him Tony, because screw formality– just eat with your hands, you idiot) and had to wonder just what in the hell is going on in the world.  This on the heels of Kate Spade’s suicide in New York earlier in the week… when the famous and ostensibly happy are this miserable, we’ve got a whole lot of work to do to make the world a better place for each other.  Spade was a local icon in Kansas City, but not somebody I ever really knew anything about.  Bourdain, however, I knew.  And while there’s no way in hell I would ever want to work for the guy, I would love to have had the chance to sit down with him and share a simple bowl of Pho and an ice cold Vietnamese beer, or perhaps dig into a massive plate of Belgian mussles and an ice cold beer or… you get the idea.  His writing and narration style color my own writing style, and he was the type of world traveler I would have had spectacular craich with.  He loved food of all types and he loved other places of all types and cultures of all types and people of all types.

And the world’s a little less interesting without him in it.

Mercifully, he’s still on Netflix.

Update, within an hour of posting… it turns out I’m not the only one who feels the way I do.  Two other blogs that I follow posted far more eloquent eulogies:

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.

FOR CLERKS OF COURT: 

Please take notice of the applicable rules regarding this issue.

  1. Rule 4(a)(1) mandates that the summons name the court hearing the case.  If the suit is originally brought in state court, the act of removal nullifies the state summons because the state court is no longer hearing the case.  The issuance of a new federal summons (AO440) is critical; without it, the plaintiff is wholly unable to fulfill his/her/its obligations elsewhere in Rule 4.
  2. Rule 4(b) requires the Clerk to “sign, seal, and issue it to the plaintiff for service on the defendant.”  This is predicated, of course, on the plaintiff submitting a properly completed AO440 (which is available for download here).
  3. Rule 81(c)(1) applies the Federal Rules of Civil Procedure to actions removed from state court.

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 and also The Hague Certificate… it’s already in English).   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 actually 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.

Justice Robert H. Jackson– of the U.S. Supreme Court and the prosecution team at Nuremberg— author of Mullane.

A bit of 4L stuff here– the stuff they never mentioned in law school because it was so basic as to be assumed [ahem, we all know what assumptions do].

Your assigned readings today are Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950)  and  Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).  Additionally, read the Hague Service Convention and the Supremacy Clause.  Be prepared to discuss both cases in a sadistic Socratic “rolling boulder” scenario.

The topic: service of process, both (1) generally speaking and (2) more specifically as it relates to defendants located abroad.

To boil it all down, a plaintiff has to tell a defendant that a lawsuit has been filed and the defendant has X days to answer the complaint.  The defendant is literally summoned to court by the plaintiff.  But there’s nothing in U.S. law that absolutely, positively requires that process be placed into the hands of a defendant.  Nada, zip, zero, zilch– despite how old TV shows might portray the event.  To the chagrin of many defendants, they can’t simply refuse to take hold of an envelope when a process server walks up to them.   The encounter itself is sufficient, regardless of their acceptance.

Conversely, it’s not enough for a plaintiff to tack a summons on the bulletin board at the neighborhood coffee shop, in the hope that the defendant will see it.  The plaintiff has a responsibility, and it amounts to this: to undertake

a means reasonably calculated to give the defendant (1) notice and (2) an opportunity to defend against the claim.

(Pay attention to that verbiage, because there’ll be a quiz later on.)

The methods most often used:

  • In most instances, a “means reasonably calculated” entails a sheriff, marshal, or professional process server walking up to the defendant– or up to the defendant’s house, or into a corporate defendant’s registered office– and handing him/her/it an envelope of documents.  If he* refuses to take it, too bad.  The person serving can simply drop the documents at his feet and the job is done.
  • “Reasonably calculated” can also include serving someone by mail.  At least legally speaking, it could be on solid ground in many places.  Factually, though, a bit shaky.  As in “prove it, pal.”  If you can’t demonstrate that the defendant actually signed for the package, you’ll have a tough time claiming that he was served– especially if you can’t prove that you have the right address.
  • And a method that we old duffers may recall is the “legal notices” section of the local newspaper.  Service by publication, they call it, and it’s still on the books in lots of jurisdictions to this day.  As a last resort, I’m okay with it, just to demonstrate that the plaintiff is trying, even though the defendant has gone deep underground (ie: vanished).  But it’s only okay if everything else has been tried and failed.  Honestly, when is the last time a non-lawyer read the legal notices section in the local paper?  At that, when’s the last time most people read the local paper?  A gross legal fiction if ever there was one, but if a defendant has gone completely dark, it’s the only way.

Overseas, things work a bit differently, especially in civil law jurisdictions (eg: anyplace that wasn’t once a British colony).  Service of process in civil law systems is a prerogative of the court, rather than the responsibility of the plaintiff.  Long ago, a method called notification au parquet entailed tacking a notice on the aforementioned bulletin board– only the board wasn’t at the local coffee shop.  It was at the public prosecutor’s office.  Today, N.P. has pretty much gone the way of our newspaper notices– still on the books in many places, but given its lack of realistic odds of success, this (even more gross) legal fiction is also a last resort.

But back to today’s assigned reading.  Mullane set out the “means reasonably calculated” standard.  Schlunk takes that idea a step further by confirming that if a defendant has to be served in another country that is party to the Hague Service Convention, then the Convention’s strictures must be followed.  Period.  The Supremacy Clause puts it above FRCP and state rules (although FRCP and quite a few states have codified Schlunk anyway).

In most civil law jurisdictions, that means the private process server option is off the table– even if the “destination state” doesn’t object to Article 10.

The ultimate takeaway: don’t play fast & loose with the defendant’s right to notice, and certainly don’t play fast & loose with the doctrines that govern how things have to happen when paper crosses a border.

Class dismissed.  See you next week when we discuss the extraordinary value of Civ Pro professors who wear bow ties.**

* With a nod to gender equality and an accurate statement by Mitt Romney (he was right, I hate to admit), I’m leaving out the he/she/it distinction from here.  I use “he” merely for simplicity.  My mom would thwock me on the head if I were intentionally disrespectful to women.  My wife and sister would join in.  And they’d be justified.

** A bit of an homage to my good friend Jeffrey Berman, who retired a couple of years ago as Associate Dean at UMKC Law.  He was my Civ Pro 1 professor, and used Beanie Babies to beautifully illustrate the concept of joinder.  We never got into the tall weeds of service of process (thus the impetus for this post), but I learned a bunch from him.

This caused no small amount of anxiety about his presence in my CLE lecture in Paris in the fall of 2016.  Teaching your teacher is an awesome, yet incredibly daunting, experience– especially when you live in the subject the fellow taught you.  But he came up afterward, shook my hand, congratulated me, and said he learned a bunch.  Like the Grinch’s heart on Christmas morning, my head swelled to three times its normal size that day.

I have on very good authority that Jeffrey still wears a bow tie as he teaches 1L Civil Procedure as professor emeritus, and 1Ls come out of the Beanie Baby lecture with a keen understanding of how whales can sue husband & wife unicorns.  Just sayin’.

(Wm. Grimes, via Wikimedia Commons.)

Our handy-dandy “How to Serve Process in China” guide has been posted for quite some time.  Pretty straightforward stuff, given that the Chinese declarations to the Hague Service Convention eliminate Article 10’s alternative methods from the equation.  There’s only one way to get it done, and that is by filing a USM-94 with the Ministry of Justice in Beijing.  On its face, a seemingly simple undertaking… rock & roll that thing on over to the PRC.

Not so fast, though.  It’s always been a bit more complicated than that.  For starters, the Chinese bureaucracy is excruciatingly slow– historically, they’ve taken six to nine months to return a proof of service.  Lately, though, more than a year passes, and there are rumblings in the transnational litigation community that they’ve stopped executing U.S. requests altogether.  But Hague strictures remain mandatory doctrine in U.S. procedure [see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) for more], so you have to at least attempt it.  And unlike their counterparts in Russia, the Chinese have not expressly stated that they will not execute U.S. Hague requests.  Instead, China assesses a reciprocal fee of $95 per request– as a countermeasure to the U.S. fee charged due to Congress’ outsourcing of the Justice Department’s Central Authority function.*

But recently, two critical developments have come to light, and practitioners need to know about them:

First, the reciprocal fee can no longer be submitted by check.  The fee has to be wired to our friends in Beijing, and a wire transmittal confirmation must accompany the Hague request instead of a bank draft.

Second, they moved!  And they didn’t tell anybody for a couple of months.  The new address for China’s Hague Central Authority:

Ministry of Justice of China
International Legal Cooperation Center
No.33 PingAnLi XiDaJie
Xicheng District, Beijing,100035
People’s Republic of China

Critical information right there.  And there’s been no official notification to the Hague Conference for a website update– as of this writing, the Conference’s site still shows the old address (which is summarily walled off, my courier tells me) and it can only be updated upon official notification from Beijing.  An update is coming eventually, I’m confident, but meanwhile a good many requests could be lost in the ether.  [UPDATE:  The Hague Conference website has been updated, as of June, 2018.]

* I still happen to think the Russians are completely justified in their recalcitrance.  I also think the Chinese are completely justified in their reciprocal fee requirement.  The Convention prohibits fees, but we charge one anyway because Congress decided we didn’t need all those gubmint employees drawing a paycheck.  Now, to be sure, the Central Authority function is outsourced to a top-flight organization– and I’m a huge advocate of outsourcing where it’s reasonable.  But the United States charges foreigners a fee for something that ought to be a routine government function, provided at public expense.

Jayess, via Wikimedia Commons.

My family is populated on both sides by blue-collar workers and farmers, going way back to the Old Country (ie: various parts of northern Europe).  Part of the ethos I gained from all four of my grandparents is “fix the damned thing yourself.”

Put another way, if that doo-hickey is so complicated that you need to hire somebody to fix it for you, you don’t need it that badly.  As a result, my family’s houses have historically been a mishmash of DIY plumbing, wiring, plastering, and various code violations.  We never hired a plumber at $100 an hour– we just fixed the damned thing ourselves.  Or we called the Old Man (my maternal grandfather, Clyde*) and he fixed it.  But the Old Man wasn’t concerned with aesthetics.  Or efficiency.

Although we saved a few bucks in the process, we wasted a whole bunch of time and created a whole bunch of ugly-but-functional physical plant.  “Does it work?” and “did you save a buck?” trumped other considerations like “is it efficient?” or “could your time have been better spent elsewhere?”

Going way back to the Old Country, my family didn’t have much choice.  Saving a buck was critical to having food on the table– and we hated having to take the government cheese, although it made better sandwiches than the expensive stuff.**

As I started practicing law, I began to recognize the wisdom in hiring someone else to do the job.  I now hire plumbers and drywall guys and painters, but not because I don’t know how to do those things.  I hire them because I don’t do them well, because it takes me six times as long to produce functional-but-ugly, and because I bill more than they do, so it just makes sense.  When I vary from that practice, bad things happen.  Peggy and I needed a new kitchen faucet earlier this winter.  Simple stuff, putting in a faucet, so off to Sutherland’s we go.  This ain’t rocket science, we said.  And it’s true.  Putting the thing in took all of twenty minutes.  Slick.

Getting the old one out took two hours.  Had it been done by a pro, it would have cost me about twenty minutes of billable time.  I should have adhered to the theory and outsourced it.***

An interesting article popped up in my newsfeed from the Business Journal a few weeks ago.  Jim Blasingame laid out a simple three-question test to determine whether a particular task or process ought to be outsourced…

Blasingame’s Outsourcing Power Question: Must this task be done in-house? 

The answer will come from these three questions:

  1.  How much control do we lose, and can we live with it?

  2.  What impact will our decision have on customers?

  3.  How much of not using outsourcing is about ego?

Now, I’m biased here, but I think much of what makes a law firm run should be farmed out.  IT, translation, investigation & process service, appellate work, accounting & billing, coffee service.  Those processes do require that a lawyer cede some control.  But they can have a huge positive impact on a client’s checkbook– efficiency does that naturally.

Far be it for me to ever challenge anybody’s ego.  I’m a lawyer.  All of my clients are lawyers.  And although we may not all have massive, outsized, bigger-than-life egos… it’s a rebuttable presumption.  And I’ll presume that much of the hesitation lawyers feel about outsourcing is as much about ego as about fear.  (Fear?  Yes.  Fear of a malpractice suit or disbarment.)

But we get a whole bunch of functional-but-ugly if we don’t call in some help– and functional-but-ugly is usually pretty inefficient.

* Clyde was an Air Force fighter jet mechanic in the early 1950s, and joined the union at the Sioux City Stockyards the same day he met a young U.S. Senator named John F. Kennedy at a 1960 campaign stop.  I never saw a piece of machinery he couldn’t fix, and he could tune up a Ford truck engine so well that it would sing Puccini arias– it just wouldn’t look pretty.  Regardless, I did not inherit this talent.

** For the uninitiated, the USDA gave away surplus food decades ago– the chief give-away being in the form of processed American cheese.  It benefited struggling farmers, it benefited poor and working class families who’d fallen on hard times, and it gave conservatives a huge political punching bag.  But I gotta tell you, there has never been a better grilled cheese sandwich than the ones we made with day old bread from the Metz Baking thrift store, a couple of slices of government cheese, and the surplus butter that came with it.

*** Update October, 2022: Interestingly enough, I just re-read Michael Mogill’s excellent book, The Game Changing Attorney.  Seems he had a virtually identical experience– except that his situation was a toilet, and he actually hired a pro to do it.  For the record, I wrote this post in May, 2018 but didn’t buy the book until November.  I’m not saying he lifted the idea from my blog, but on the re-read, I was concerned that I might have lifted it from his book until I checked the timeline (because lawyer).  That we both illustrate the dilemma with plumbing frustration just underpins the strength of the argument.

This is a reboot of a post from last year, but it bears repeating: summonses in bankruptcy adversarial proceedings must be modified if they are to be served on a defendant located abroad.  Not should.  MUST.

The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court.  Perfectly logical.  And Rule 7004 governs how to serve the summons.  Again, logical.  But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.

The reality is that a bankruptcy action is going to be served under Rule 4 in most cases.  That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad.  Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it.

Bankruptcy lawyers are under no heavier a burden than the rest of us.  There’s no difference in how you must get service effected, whether a bankruptcy adversarial proceeding or a personal injury suit.  There’s a problem, though:  proper Hague service takes a while— a very long while in many instances– and bankruptcy summonses must be answered within thirty days after issuance.  That’s not a big problem here at home.

But, hang on, says the adverse party.  It is a problem here at home.  You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer? 

Well, no, not exactly.  The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e).  Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).

But 7004(e) applies only within the United States.  The seven-day rule doesn’t apply when serving abroad.  So how to get around the expiration?  Simple.  Just modify the language.

To be fair, any adversary is going to need two or three weeks to properly answer a complaint.  This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?).  Simply put, though, if you have to serve an adversary outside the United States, it won’t happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.  But if it’s not done in either of those two countries, forget it.

To be sure, Bankr. Rule 7012(a) requires the court to set a different answer deadline for offshore defendants: “The court shall prescribe the time for service of the answer when service of a complaint is made by publication or upon a party in a foreign country.”  You’ll get very little pushback from clerks in the know.

Tell the Clerk that the summons (Form B 250A) must set a deadline based on the date of service— not based on the date of issuance.  Best bet: go 21 days, just like you’d have in a regular AO440.  It doesn’t have to be an overly complicated edit, and it doesn’t have to alter the substance of the document itself.  Seriously, the picture above shows it all.

Woman in Gold, Gustav Klimt, 1907

Here we go again.  Every few weeks, somewhere in these 50 states, a case gets dismissed for lack of proper service on a foreign sovereign (or foreign state instrumentality).  There’s not a single rule, statute, or customary practice that ought to tell a plaintiff that just dropping a summons & complaint on a receptionist’s desk at a foreign diplomatic mission is effective. Write this down…

THAT.  DOES.  NOT.  WORK.

Unless they’re exceedingly dense, opposing counsel is going to 12(b)(5) the hell out of your claim.  Very likely after Rule 4(m)’s 90-day deadline passes (uh oh).  Your client will be less than amused.  So don’t even try.  No, really.

Late one afternoon, on a plane ride home from Italy, I clicked into that high-tech touchscreen (you know, the one that works sometimes) on the seatback in front of me.  I’ve always had a bit of a crush on Helen Mirren, so I spent a very worthwhile 109 minutes watching Woman in Gold.  It really is an incredible film, depicting a Los Angeles woman’s quest to recover a legendary painting that had been stolen from her family in the early days of the Nazis’ attempt to eradicate the Jews of Europe.

Some five decades after the war, she learns that the painting hangs in the Austrian state museum and, with the help of an energetic young attorney (who looks strangely like Wade Wilson), launches a lawsuit against the gallery that purports to own it.  Because the gallery is owned by the Austrian government, the energetic fellow says process has to be served by sliding the summons & complaint through a teller’s window at the Austrians’ L.A. consulate.  And litigation begins in earnest.

Had I been alone in my own home, I would have emitted a deathly scream unlike has been heard in Kansas City since we dropped the 2014 World Series.  I’m Norwegian, so it would have looked like this:

But… aircraft decorum prohibits such noise when fellow travelers are trying to sleep, so I kept my mouth shut and grumbled through the rest of the movie.  Why the mental torture?

BECAUSE HOLLYWOOD SCREWS UP THE RULES.

There’s no way in hell that the real Randy Schoenberg got it done that way.*  Not a chance, unless he really was young and green (okay, that I understand) and the lawyers hired by the Austrian government were simply clueless.

If they weren’t clueless, it would take all of seven minutes to draft the 12(b)(5) motion.  And that includes time enough to open and pour a Stiegl to consume upon completion.

In reality, the Foreign Sovereign Immunities Act controls the method of service– and in this case particularly, 28 U.S.C. §1608(a).  That statute, in turn, raises the question of how service is effected in Austria.  Simply put, a Letter Rogatory, because Austria (as I understand it) has a statutory prohibition on mail service.  End of options before resorting to diplomatic note.

And because HOLLYWOOD SCREWS UP THE RULES, lawyers far & wide stop short of investigating how to do it properly.  It staggers the imagination.

Seriously…  just do this.

* I emailed the man himself.  Randy, how’d you really do it?  No answer.  I really blame Hollywood scriptwriters for this, in the same way infantrymen curse filmmakers who lack the good sense to hire Dale Dye.

Update, July 20, 2020:  an interesting new application of the FSIA hierarchy is in the works, and I’m curious to see how it is interpreted.  As of September 12 (some eight weeks from now), the Hague Service Convention will enter into force in Austria.  Its declarations are yet to be posted to the HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention.  Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods.  So my question: how does this square with the §1608(a) list, which mandates that mail service be attempted before diplomatic channels?  We shall see.

Adare, County Limerick.  Oh, yeah– ask for Chloe at Pat Collins.  But be aware what ye say… all the pubs in Adare are related.  Her cousins, Julianne and Jason, work at Auntie Lena’s down the block.

We’ve been on “vacation” since last weekend.  I use quotation marks because, in all reality, I cannot disconnect completely, as it would be a disservice to my clients– all lawyers who need help navigating the cross-border issues that they never touch on in law school.  Everybody with an active matter knows I’m overseas, and they’re incredibly respectful of my time and circumstance, but I take great comfort from the fact that I can still work no matter where I am.  Peggy is not incredibly pleased when I pull out my phone to answer an email, but she understands the challenge.

Just today, a colleague shot me a question that I was able to answer– quickly and definitively, on my phone– from pub in County Limerick, Ireland.  Ponder the practice of law today versus the practice thirty years ago.  Answering that question would have taken either several days or a whole bunch of dollars– probably both, and definitely, not from Pat Collins’ Pub.

But in a matter of minutes, I was able to tell her exactly what she needed and, hopefully, save her client several hundred dollars.  It cost me all of seven cents, thanks to the miracle of the Internet.  I called her and said, “yeah, no worries– do XYZ and you’re fine.”  Not a chance I could have done that in the 1990s.

Our economy is no different– we are part of an interconnected world.  An inextricably linked world.  Personally, I like that.