How this concept turned into a series, I don’t know, but today we offer yet another description of the need to amend the standard language in a summons.

See my priors:

This time, we’re talking about good old Form AO440, the Summons in a Civil Action that is used to kick off a suit in U.S. District Court, and its use in Foreign Sovereign Immunities Act (FSIA) cases.

The standard AO440 sets a 21-day deadline for a defendant’s answer. If they’re served on December 3rd, they’d better answer by Christmas Eve, or come Boxing Day the plaintiff can staple proof of service to a default motion. Nothing odd or controversial about that.

Note the text that follows the 21-day language: “… or 60 days if you are the United States or a United States agency.” Still no controversy.

But a little known statutory clause provides that same deadline extension to foreign governments, agencies, and instrumentalities, too. I give you 28 U.S.C. §1608(d), part of the service section of the FSIA. The extension is simply a matter of right, so in order to avoid any confusion on the issue, I often advise my clients to have the summons language amended. Clerks are usually happy to do so without much pushback. [The requirement also applies in state court actions!]

A few weeks ago, however, the clerk in a sparsely populated district (identity withheld to protect the innocent) flatly refused to change the text, and said we’d have to get the judge to order her to modify the standard form. More motion practice, more delay, and more irritation for the person wearing the shiny robe and wielding a little wooden hammer…

Seems a bit silly given the explicit text of §1608(d), and given that S.D.N.Y. and D.D.C. both do it as a matter of course, providing already-modified forms on their websites here and here. But Foley Square and 333 Constitution Avenue N.W. see more FSIA cases than any other district (foreign embassies abound in both, of course), so it’s not surprising that they provide blanks at the outset. It’s also not surprising that clerks out here in The Flyover* would be unfamiliar. They just don’t see this stuff very often. But if you run into this situation, just show the clerk this post (it just shouldn’t take more motion practice to get this stuff done) and maybe you’ll save everybody– including the clerk!– a bunch of hassle.

* Sure, dictionary.com considers the word just an adjective. Here in The Flyover, it’s a noun. And we don’t mind, frankly, because anybody who uses the term derisively is best advised to stay where you are, because we don’t appreciate your attitude toward our home and might be prone to not be nice to you.

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Erik Mclean, Unsplash

Among the most frequent questions we field: “Hey, Aaron, what what would you charge me to serve a defendant in (pick a country)?” or some variant thereof.

It’s usually a tough question to answer any other way but “I can’t say just yet.”

Unfortunately, asking what it would cost to serve somebody in XYZ is a bit like asking your local Toyota dealership how much a car costs– there are far too many variables in the equation for us to simply throw out a price tag. Some examples:

Continue Reading How much does it cost to serve a defendant in (insert country name here)?

We’ve noticed an uptick recently in product liability claims and patent infringement suits against foreign automakers– in particular the German luxury car manufacturer Mercedes-Benz and its U.S. subsidiary. The question that arises daily around here, and the question that drives everything we do, is this: how do we get these guys served?

Continue Reading How to Serve Mercedes-Benz

(Author’s note: go back and watch Willy Wonka and the Chocolate Factory.  Treat yourself.  No, not the Johnny Depp version– the one starring the late, great Gene Wilder.)

A few years ago, I posted The Hague Certificate– all the proof you need, a fairly straightforward missive that outlined the normal instrument that proves up Hague service (Article 5 service, that is), and the solid precedent set down by Northrup King v. Compania Productora Semillas, 51 F. 3d 1383, 1390 (8th Cir., 1995).  In short, if you have a defendant served pursuant to Article 5 and the foreign Central Authority issues a Certificate to that effect, you’re solid.*  The court doesn’t get to parse through the record to make sure it was done in accordance with the foreign country’s procedural rules.

The Certificate is your Willy Wonka Golden Ticket.  Now, in isolation, the Certificate doesn’t tell the court everything it needs to know, so some context is needed, but some Central Authorities go a bit overboard with their context.  Some others demonstrate that their bureaucrats are simply creating extra paperwork to justify their own jobs.

A word of caution: don’t file all that extra stuff with your Certificate.     Continue Reading Don’t file the extra stuff that comes with your Hague Certificate.

During our road trip on highway 66 we stopped at a local shop and I spotted in a dark corner this old map with pins and currencies left by visitors from all over the planet.
Christine Roy, Unsplash

I don’t have an FAQ page on this blog, but if I did, the very first question out of the gate would be “How do I cut that translation cost down from $50,000 to a more manageable figure?”

It really is a shock to a litigator’s system– especially that of a patent litigator– when they’re told that the documents they have to serve in Germany or China or Mexico will cost them five (or six!) figures to translate. Those countries’ declarations to Article 5(3) of the Hague Service Convention require translation. Period. And most other countries require it too, with no exception or variance as to what gets translated and what doesn’t. It means everything.

Continue Reading The time to save money on translation is *before* filing.

Photo by Dave Adamson on Unsplash

Litigation is a bit like football– the helmet & pads version we play here in North America, not the one where the use of hands is forbidden (seriously, guys?).

Much of the academic side of the game is in strategy, thinking fifteen minutes down the road, managing the clock, keeping your QB protected and your linemen well-rested.  But sometimes, there’s just no strategy possible, like when three seconds are on the clock, it’s 4th and goal, and you’re down by 5.  There’s precisely one acceptable move, and that’s simply to go for the end zone.  There’s a whole lot of comfort in that.  Even though it might seem like a daunting situation, all you can do is just execute.

In much of what I do, there’s simply no strategizing possible.  There’s precisely one acceptable move, and that’s a Request pursuant to Article 5 of the 1965 Hague Service Convention.  Many HSC member-states are what I like to call “Five-O countries” because they object to Article 10 alternative methods, so you’re left with Article Five Only. There’s a whole lot of comfort in that.  Even though it might seem like a daunting situation, all you can do is just execute.

Continue Reading Five-O countries and the (counterintuitive) comfort of zero options.

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Photo by Rick Jamison on Unsplash

Friends, we’re not 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.  Likewise, a leaky approach to procedural rules can thwart an otherwise strong case just as it gets underway.

Serving process in Antigua and Barbuda is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  A&B is a stunning pair of islands in the Caribbean– formerly a British colony and still part of the Commonwealth of Nations, and thus part of the common law tradition that we know so well on the North American continent. As such, service of process is viewed quite similarly, without much fanfare. Unfortunately, there is a fair amount of uncertainty in the islands’ view of the Convention, so I can only recommend a single road to effective service.

You’ve got three ways start that road:

Continue Reading How to Serve Process in Antigua and Barbuda

Photo by May Gauthier on Unsplash

Lawsuits against various TikTok entities– in particular its parent company, ByteDance Ltd.– have come at a steady trickle over the past several years.  Lately, though, we’re seeing a dramatic surge, as individuals and state attorneys general seek redress over potential privacy violations stemming from the platform’s use and alleged data harvesting by the Chinese government.  The steady trickle is turning into a swift current.

Continue Reading How to Serve TikTok

CryptoWallet.com, via Wikimedia Commons.  The height of irony, this credit.

We’ve seen a big uptick lately in disputes over cryptocurrency platforms– many of which are legit, and many of which are complete scams.  The sudden (though, come on–  not realistically unexpected) bankruptcy filing of FTX last week promises to kick the issue into overdrive.  To be sure, this is not yet another obligatory Sam Bankman-Fried post.  It really was scheduled two weeks ago. Continue Reading Cryptocurrency suits and service abroad