L. Leonard Ruben District Court Building, Silver Spring, Md.  Farragutful, via Wikimedia Commons.

A while back, I wrote that removing the self-expiration language in a standard bankruptcy summons is imperative when serving overseas defendants in adversary proceedings.  I’ve used that post on several occasions to advise litigators in various state venues to do likewise, where the documents contain text like “This summons is effective for service only if served within 30 days after the date it  is issued.”

The same basic logic applies:

If the summons expires by its own terms before we can reasonably expect a foreign authority to get the thing served, we’re wasting everybody’s time– especially the clerk’s office.

On the other hand, if the clerk’s office will simply edit the summons to remove the problematic language, the procedural machine runs smoothly, purrs like a kitten, spins like a top.  Sure, it does so very slowly in some places around the globe, but that’s exactly the point to the edit.

Lately, though, we’ve gotten a fair amount of pushback from state court clerks who either (1) need us to give them something to hang their hats on– a legal basis for the modification– or (2) just don’t wanna– and flatly refuse to modify the text.  This post is for those clerks. For the record, I happily admit the following:

  • Your local rules are carefully drafted to ensure that the docket keeps moving.*
  • You have an obligation to follow those rules.
  • And of course, 30 days means 30 days.

Look, I get it.

But do you know who doesn’t get it– and more importantly, who doesn’t care?  Foreign authorities. 

Particularly those in China, or India, or Mexico.  Heck, even officials in Canada or England or Australia (you know– countries that actually still like us) are certain to giggle a bit when an American lawyer tells them “my local court rules require you to have this summons served within 30 days** and return proof within 30 days after that.”

That is, they’ll giggle a bit if it doesn’t so thoroughly rankle them that they dump the American lawyer’s entire request packet in a shredder.

Imagine if a U.S. court clerk received a demand from the Amsgericht in Düsseldorf demanding that its request for assistance be executed within a certain time constraint.  The U.S. court clerk would laugh and laugh and laugh.  Silly Germans.

Silly, silly Germans.

Honestly, if the roles were indeed reversed like that, you would be howling mad.  How dare a foreigner tell us how to do things in our own jurisdiction?  How dare they dictate terms?***

Now, I realize that requests for service don’t frequently land on the desks of U.S. court clerks– service is the responsibility of the plaintiff in common law jurisdictions– but in civil law systems, it’s a function of the court.  Even in other countries that share our common law heritage, requests for service under Article 5 of the Hague Service Convention are handled by government officials.  So if the Clerk of the 16th Circuit Court for Jackson County, Missouri barks orders at the Amsgericht clerk in Düsseldorf, that German is going to be justifiably mad.

So what is the legal basis for the fix?  Well, first, we look to why the expiration is there in the first place.

Is the language prescribed by statute or rule?  No?  Then fix it.

If yes, does the statute or rule provide a safety valve?  (I’m looking at you, Illinois… the prescribed language need only be substantially adopted in the summons.  And in Maryland, the rule that requires the expiration also says the summons can be renewed upon written request… so just renew it preemptively.)  Or is there some presumption in the statutory language that is overridden by the Hague Service Convention?  If so, there’s no problem fixing it.

Ultimately, if the expiration is just common practice, intended to motivate plaintiff’s counsel to act accordingly, then there’s nothing to overcome.


* Unless you’re in Missouri, where service rules were seemingly drafted by a committee of four year-olds very much in need of a cookie and a nap.

** For the record, in Missouri’s defense, our summonses don’t need such editing.  That said, some of our clerks think they can dictate who is authorized to serve abroad.  (Hint: they can’t.)

*** I appeared as an expert witness not long ago, regarding my involvement in a failed service request to China (local officials’ failure– not ours).  On cross-examination I was asked by the Chinese defendant’s counsel why I didn’t just tell the Central Authority in Beijing that it screwed up, and they should do their jobs better.  My response to the attorney, who was actually native Chinese, was “wow, and I thought you might have a better understanding of the Chinese government than the rest of us here.”

Flag of Portugal at the Castelo de São Jorge in Lisbon. Berthold Werner via Wikimedia Commons.

Portugal is erroneously considered the “little brother” of the bigger country next to it on the Iberian Peninsula.    It has its own culture, its own language, and one heck of a lot more progressive recent history than its neighbor-who-shall-not-be-named.*  At one time, it was a global colonial power, and it counts some of the 16th century’s greatest explorers among its sons.   Pertinent to litigators today, serving process in Portugal is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

You’ve got three ways to go:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & prefer to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad and expect it to actually work.  You have to file a Hague Evidence Request, which is dramatically different from serving a summons or notice.

Here’s how service is effected in Portugal

Article 5 Service

  • Translate the documents into Portuguese. Portugal’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
  • Fill out a USM-94, and do it in Portuguese.  Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—possibly a year or more from submission to return of proof.

Article 10 alternative methods

  • Mail service may be available, depending on your venue, but it’s a bad idea anywayIt’s an even worse idea amid the Covid pandemic, so save yourself a headache by using a more formalized method.
  • Service via local counsel is available under Article 10(b)– a Portuguese attorney can effect service without the involvement of the Central Authority, using the local procedure as if the action were brought in a Portuguese court.  It can save a bit of waiting, but the cost in many cases outweighs the speed.  If time is of the essence, though, this can be a fantastic option.  Just make sure local counsel is adept at Hague issues.

Seriously—that’s all there is to it in Portugal, but don’t get excited.  Sure, the method is straightforward and simple, but it’s going to take a while, even if you have a lawyer handling things for you in-country.  The wheels just move more slowly than they do over here.

Portugal’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.


* Of course, I mean Spain.

Ah, Umbria in the fall.

Because of this blog, I get a significant number of calls and emails from pro se litigants, with varying sorts of questions.  Ordinarily, I tell them I can’t advise them directly, but if they’ll have their lawyer call me, I’d be happy to help.  Some reply with thanks and a simple “thanks, Aaron, I’ll do that.”

Others reply with an expletive-riddled rant that lawyers are leeches draining the financial life out of hardworking people and why don’t we just all walk off a cliff somewhere.  I don’t mind telling them to go away.

But there’s a third type of response that bothers me greatly (saddens me, really) because it’s so unnecessary.  One such inquiry pinged in this morning, just as I was brushing my teeth.

“Hi, Aaron.  I’m in Oklahoma City and I need to serve divorce papers on my wife in a place called Perugia, in Italy.  I know I need a lawyer, but nobody here in OKC will take my case because they don’t know anything about Italian divorce law.”

Sisters and brothers of the bar… you don’t need to know Italian divorce law to handle a divorce in Oklahoma.  You do need to have a rough understanding of how things work over there, but if you bring another attorney on board to tell you where the landmines are buried,* you’ll know what’s necessary to know.

Of course, the geography here has been changed in order to protect confidences.  It really doesn’t need to be, though, because this is a routine fact pattern with similar variables– the plaintiff’s location, the defendant’s location, the type of case.  It could be a car accident in Miami involving a German defendant or a contract dispute in Seattle involving a Japanese defendant… it all boils down to this: many lawyers decline the case because they don’t want to have to navigate a Hague Convention.  Any Hague Convention (there are many).

The situation need not be so.  I’ve ranted for years that lawyers do themselves and their clients– whether engaged or prospective– a disservice by thinking they have to do everything themselves.  Or have all the answers themselves.  Or keep all those fees in-house lest a senior partner glare at them.

The whole point of the Hague Law Blog is to assist lawyers who don’t know anything about Italian divorce law or German personal injury law or Japanese contract law.  We’re here for you— and by “we” I mean fellow lawyers who will provide consultation and guidance, often for a fee, but often not.  Professional courtesy abounds in this business, I’m happy to report.

Don’t get me wrong.  Declining a case because it’s outside your area of expertise is not only wise– it may be unethical not to.  Tax lawyers shouldn’t sign on to capital murder cases.  M&A wizards shouldn’t handle divorces.  Y’all just stay in your lane.

But if the only thing keeping you away from taking a case is the fact that the defendant is overseas, all I can say is… relax.  There’s help.


* Landmines like jurisdiction over custody, division of overseas property, alimony, child support enforcement…

What? Atticus Finch was also a whaling ship captain?

[Update: April 22, 2022:  Aaaaand then he takes the opposite view, getting it wrong.  See my new rant way down at the bottom.]

In the Western District of Texas– Waco, specifically– patent litigation has exploded as a result of the efforts of a single jurist: Hon. Alan D. Albright.  Judge Albright’s ever-expanding docket is controversial, even drawing bipartisan ire from the Senate Judiciary Committee leadership.  Say what you will about Albright, J.– he got this question right.  In a pair of recent rulings,* Judge Albright denied leave to serve electronically where the defendants would be served in Hague-signatory countries.  This merely recognizes what I hope the rest of the judiciary, at both the federal and state levels, gets its head around: opinions from One First Street hold sway.

In this instance, I mean Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 and 706 (1988) holds sway.  But you’d be amazed at how many lawyers– and courts– get it wrong.

It’s not a difficult concept.  The two holdings in Schlunk utterly destroy the arguments espoused in S.D.N.Y.’s Gurung decision and its progeny:

  1. If the Convention applies, thou shalt follow it.  Period.  (At 699)
  2. The methods laid out in the Convention are exclusive, so don’t get cute.**  (At 706)

Strangely, though, frustrated litigants and their counsel seek over and over again to evade Justice O’Connor’s logic.  And courts are starting to recognize more frequently Ted Folkman’s White Whale.  Namely:  a whole line of very, very, very flawed case law– including a terrible opinion in the California Supreme.  Last year, N.D. Cal. got it right in a China service case.  Most recently, W.D. Wash. hit the nail on the head in Amazon.com, Inc. v. Robojap Techs. LLC (2021), another China case.  Says Ted about that one:

Amazon “argue[d] that because the Hague Convention says nothing express about email service and India only objected to service by postal channels, the Convention does not prohibit service by email.”

The court recognized the many recent cases—all at the district court level—that had permitted service by email in similar circumstances. But it recognized the clear error in Amazon’s argument, which “gets things backwards.” Since the lists of methods of service the Convention authorizes or permits is exclusive, any form of service “not expressly permitted by the Convention” is “impermissible and prohibited. To conclude otherwise would mean that the Hague Convention’s forms of service are not exclusive, contrary to the Supreme Court’s clear pronouncement on this subject.” Although many courts have given weight to states’ failure to object expressly to service by email, the judge recognized that “[b]ecause the Convention does not expressly permit email service, India had no reason or need to affirmatively reject it for it to be considered prohibited.”

That stems directly from the second Schlunk holding.  The Convention’s methods are exclusive.  Lots of lawyers and lots of judges get it backwards– the fact that electronic service isn’t prohibited doesn’t mean it’s permitted. ***


* ACQIS, LLC v. Lenovo Group Ltd. et al. and The Trustees of Purdue University v. STMicroelectonics International N.V. et al.  [Hat tip to the fellows at Winston Strawn for their post on the story.]  The ACQUIS ruling gets to an even deeper analysis regarding service on a state statutory official.  I’ve written before that you can’t just serve the Secretary of State and call it good.  Effective service depends on (1) where service is ultimately completed– at the secretary’s office or in the defendant’s hands overseas– and (2) whether that completion comports with due process.  Oh, I could go on and on.

** Yes, yes, I know (Aaron’s rant coming here).  She didn’t actually write don’t get cute… but that’s what lawyers do when they try to conjure up creative ways to get around the Convention.  There are but three ways to “get around” the Convention:  (1) serve in the United States rather than in the foreign country, (2) get the defendant to waive (good luck with that), or (3) dismiss the thing.  Hear me well, dear reader… if you’re serving in a Hague country, YOU DON’T “GET AROUND” THE CONVENTION.  So knock it off.

*** That is not to say electronic service is never permissible.  It’s just not permissible where the Hague Service Convention applies and the destination country objects to Article 10.  If the Convention doesn’t apply… game on.


April 22, 2022… now this, again from the good folks at Winston & Strawn.  Quoting W&S here…

In authorizing alternative service, Judge Albright was motivated, at least in part, by the delay Hague service has presented to Sinox. As of the date of the order, Sinox’s Hague service has been outstanding for over three months, with further delays likely due to the coronavirus and geopolitical issues. Relying on Document Operations LLC v. AOS Legal Techs., Inc., Judge Albright observed that alternative service can be warranted when time considerations render Hague service inappropriate. No. 4:20-CV-1532, 2020 U.S. Dist. LEXIS 211307, at *8 (S.D. Tex. Nov. 12, 2020). Noting that several months of delay associated with Hague service would permit the accused infringing products to continue to enter the market and delay the resolution of Sinox’s patent rights, Judge Albright determined that alternative service is appropriate.

Urgh.

“… motivated, at least in part, by the delay Hague service has presented (…) Hague service has been outstanding for over three months… ”

Three months is nothing in Hague time.  Even the fastest of Central Authorities take two or three months.

“… observed that alternative service can be warranted when time considerations render Hague service inappropriate.”

NO.  Just… NO.  Time considerations can’t render Hague service inappropriate without conflicting violently with Schlunk.  As Ted Folkman so succinctly puts it, this is simple and inexorable logic.

Flip Wilson, 1975. White House photo, via Wikimedia Commons.

(TL;DR– it isn’t used after service abroad, so why pay to translate it?)

The standard sheaf of documents that we’re asked to have served on foreign defendants in foreign lands obviously includes a summons.  The lion’s share of cases we handle are in federal court, so this naturally means a Form AO440 or the occasional AO441Page two of those forms, long before e-filing, were often printed on the physical reverse of the summons itself.  The front said to the defendant, essentially, “you’ve been sued, and you have 21 days to show up and argue your case.”  The back said to the court, “hey, judge, I’m Joe Bob the Process Server, and I handed the summons & complaint to the defendant on X date at Y time.”

But when we have somebody served abroad, the page two proof is not the operative document…

  • If we have service effected pursuant to Article 5 of the Hague Service Convention, the form of proof is prescribed by Article 6.  It’s called a Hague Certificate, and (as I posted a few years ago) it’s all the proof you need.
  • If we instead proceed under Article 10(b), proof comes in a full-blown affidavit rather than the flip side of the summons.  Why? Because the flip side doesn’t fully describe fulfillment of the applicable law.**

Consequently, the second page of the summons form is really of no legal, um… consequence.  It also might tend to annoy foreign authorities who view it as an inappropriate directive from a U.S. court.  So I usually pull it from the stack of service docs and save my client a few bucks in translation.

This all falls under Rule 4(l)(2) and it’s pretty straightforward stuff…

Rule 4. Summons

(l) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

Rule 4(l)(2)(A) covers Article 5 service.  It also ostensibly covers Article 10(b), but since that Article doesn’t prescribe a form of proof, bump to (B).  Straight-up rule construction there.  In any event, note the parenthetical after “PROOF OF SERVICE” at the top of page two:

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

Without it, you’re good to go.


* Hat tip to the late, great Flip Wilson.  Pun very much intended.

**  If it is used, defense counsel ought to howl in protest.

Quite possibly the coolest national flag in the western hemisphere.  After all, Maserati apparently adopted in for its logo

We aren’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the Barbados is subject to the strictures of the Hague Service Convention, regardless of which venue is hearing the matter.   Barbados gained its independence from the United Kingdom in 1966, though it remained a member of the Commonwealth of Nations, and fully implemented the Service Convention just three years later.  As of today, Barbados is a Republic, but still a member of the Commonwealth, and still home to a pop mega-star called Rihanna (and her umbrella).*

And still, nothing has really changed in the application of the Hague Service Convention– it’s simply about time I posted something about this tiny island nation and the way they handle service of U.S. and Canadian process.  Some background is in order, if you’re so inclined…

Now for the nuts & bolts aspect of our show:

Article 5

  • Translation: Barbados makes no declarations to Article 5(3) of the Service Convention. As a former British Colony, English is the operating language, so game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10

  • Barbados does not object to service via Article 10 methods.
  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available under Article 10(b)/10(c).

Central Authority information for Barbados and for the other countries in the treaty—can be found here.  Pretty straightforward stuff down there; not a lot of fanfare, if you’re careful and complete the right paperwork.  Oh, and a bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* Ahem, that’s The Right Excellent Robyn Rihanna Fenty… who was named a Barbadian National Hero in ceremonies marking the island’s transition to Republic status last night (11/29/2021).

 

An iconic Shell station in Winston-Salem, North Carolina. David Bjorgen via Wikimedia Commons.

Reports the New York Times this morning:

Shell proposes a shift to Britain, dropping ‘Royal Dutch’ from its name.

The Anglo-Dutch energy conglomerate will apparently become just Anglo in the coming months, which begs the question… how do we serve the company when it’s sued in a North American court?  Simple answer: effectively the same way we’ve been doing it previously, but perhaps in a different place.

In most U.S. and Canadian jurisdictions, current practice allows for Shell to be served in either London or The Hague, with a similar treaty regime covering both.  Article 10(b) of the 1965 HCCH (Hague) Service Convention allows plaintiffs to effect service by directly engaging either a Dutch gerechtsdeurwaarder (bailiff) or an English solicitor (who in turn instructs a private process server).  The only difference in practice is that the Dutch operate under a civil law system while the English are common law.  That truly has little bearing on how the company gets served under Article 10(b).

So what happens when the company drops “Royal Dutch” from its name and officially moves its mother ship to the foot of the Millennium Eye?  Only one thing… my gerechtsdeurwaarder doesn’t get to serve it anymore.  Plaintiffs still have a fairly straightforward road to service.  But it remains critical to name the company correctly… Royal Dutch Shell plc will likely just be Shell plc in the coming year.

I’m older now than George Blanda was in this picture.  This is in his third decade of pro football. (L.V. Raiders archive.)

A couple of years ago, in The Before Times, the leadership of the National Docketing Association asked me to speak at its annual convention in Denver.  For those unfamiliar, the NDA is a fantastic coalition of court clerks, attorneys and law firm staffers who, simply put, make sure the trains run on time in the world of litigation.*  I’ve had the good fortune to work with many NDA members over the years, and I love Denver anyway, so it was an easy yes answer.  Thinking I’d give my stock CLE presentation about the Hague Service Convention and the minefield that lies before lawyers and law firm staffers whose opposing parties happen to be overseas, it would be easy to put an hour-long presentation together.

“No, Aaron, not a CLE session.  We want you to do the keynote.”

Um… huh?  [I’m eloquent that way.]

“The keynote, stupid.  The main event.  The big enchilada.  You know– the one where everybody is in the room?”  [I paraphrase for effect.  The NDA’s e-board is nothing if not professional.]

Well, that’s a different matter entirely, I thought, knowing I couldn’t get out of it.  These were clients, after all.

So what in the heck am I going to talk about?

I simply considered my audience, and it dawned on me.  Without skilled staff– or lawyers who pay close attention to detail– a case never even starts.  Sort of like a football game doesn’t kick off until, well, the kickoff.  And that requires somebody with both a monster foot and pinpoint precision.

Unless we’re talking about the Texas State Armadillos, the most maligned and ridiculed member of any gridiron squad is the kicker.**  It’s occasionally some guy from the former Soviet Bloc who couldn’t make it in the Premiere League, or he’s not the right size to play any other position, but he doesn’t do much else besides kick (the great George Blanda excepted– he was a kicker and QB).  He doesn’t get tackled, and he might actually hold the ball once a year.

In your average law office (does that even exist?), the docketing clerks and the paralegals don’t get much sunlight because it’s all shining on the litigators.  These people are unsung because their name isn’t on the door and they never step in front of a jury.

But of the top scoring leaders in NFL history, you have to go past the top twenty to get to a non-kicker.  What does that tell you about their effectiveness, their value?

Extend that analogy a bit.  What does that tell you about the clerks and paralegals in your firm?

Same answer: without some very talented people at those positions, you put fewer points on the board– if the game ever starts at all.  A kicker focuses on just one critical portion of the spectrum that is a football game, just like a clerk or para focus on a critical set of issues that lawyers, let’s face it… don’t.

So a little message for law firm staff: what you do… matters.  It matters just as much as the research and drafting and eloquent argument that your attorneys bring to a case.

And two takeaways for attorneys here:  (1) don’t get a big head– your support staff can make you or break you.  (2) Remember that, if you don’t pay attention to the minutiae of procedure, you can forget about collecting a judgment and making your client whole.


* It’s actually more staffers– para’s, LA’s, clerks– than lawyers, and that’s a good thing.  Staffers worry about deadlines and proper filing formats (procedural), while lawyers so frequently get hung up on the nuances of argument (substantive) that they forget timelines and font sizes– to their detriment.  I happily live in both worlds– yes, I’m a lawyer, but my bailiwick is procedural.

** Good luck finding the 1987 SNL clip “We Are the Kickers.”  Introduced by Walter Payton, the sketch lampooned the hell out of these guys.  It was funny, it was offensive, and it’s been scrubbed from the internet.

 

Another hat tip to the great Jan Stenerud, who is both a Norseman and a Kansas City transplant.
Photo by Behnam Norouzi on Unsplash

At least once a week, a client will ask how much time they should put in their request for an extension under Rule 4(m) when serving an overseas defendant.  My answer, as I’ve said before: DON’T.

Don’t request an extension. Don’t ask the court for “just a bit more time, Your Honor.”  Don’t even acknowledge that there’s a deadline, because there isn’t one.

Don’t request anything.  There’s nothing to extend.  If you request an extension, then you tell the court you agree that there’s a deadline (which there is not) and then you’ll play hell for the next 18 months begging for extension after extension after extension.

So stop it.  

If somebody in the clerk’s office barks at you about the 90-day deadline in Rule 4(m), tell them to read the entire rule.  Likewise the judge.

Rule 4. Summons

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

It bears repeating.  The deadline does not apply to service in a foreign country.
Does.
Not.
Apply.
Now, does this mean you have unlimited time?  Heck no.  It just means you have to be reasonably diligent, and that’s not a hard standard to meet.  If you call opposing counsel for a waiver or seek help from somebody like me to get the ball rolling, it’s going to be a piece of cake to show that you aren’t dragging your feet or wasting the court’s time.  The moment your request packet arrives at the foreign Central Authority, you are deemed diligent.

 

For a bit of elaboration on the time issue, see the following:

 

If you’re in state court, I hope it’s Colorado or Maine (among others), where they’ve pretty well adopted the federal view of things.  Most state rules do provide an extension mechanism (in which case, ignore all that “DON’T” admonishment above), so you should be okay.  Sorry, Wisconsin & Michigan… y’all got problems.  Or, you could just go federal at the outset.

Above all, know that treaty adherence is mandatory when you’re serving in a Hague Service Convention country.  Says who?  Says her:

O’Connor, J. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

My inbox frequently pings with an important query:

“Hey, Aaron, can you introduce me to local counsel in (Country ABC) to help with an enforcement action?”

Sometimes, you bet I can.  Ireland, Singapore, Germany,  Italy… no problem at all.  I’ve got people.

Other times, not so much.  Not because the country in question doesn’t have lawyers– but because I haven’t needed to make a connection there for whatever reason.

But the fact that I don’t know somebody “over there” isn’t the end of it.  A little known resource provided by the U.S. Department of State has usually yielded good results for me: the Legal Assistance lists available from the U.S. Citizen Services offices in our embassies worldwide.  Here’s how to find somebody (it’s really quick):

  1. Google “U.S. Embassy (Country ABC)”
  2. The search should show a link to U.S. Citizen Services right within the initial organic results, so you won’t have to navigate much.  If it doesn’t show up immediately, no worries.  Click onto the main page for the embassy, and you should see a comparable link without a lot of fanfare.
  3. On the U.S. Citizen Services page, scroll down to Local Resources, and click on Legal Assistance.
  4. The Legal Assistance page will show a list of English-speaking attorneys in that country who have identified themselves to the embassy staff and indicated that they welcome American clients.
  5. The document may even break down the list by geography and specialty (both are critical to finding the right colleague).

This list is not an endorsement of those lawyers by the U.S. government– it’s merely a resource, but I’ve always had pretty good luck with it– and have even gained a couple of friends out of the deal.  Also worth noting– many Canadian embassies maintain similar lists of attorneys who welcome Canadian clients– frankly, if you can’t find somebody on one country’s site, try the other!