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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?!

This guy *still* can’t serve for you in China.  Even if a contract says so. (Chengsbroethers, via Wikimedia Commons.)

An interesting case popped up on my newsfeed this afternoon (hat tip to Hwan Kim, writing for Sheppard Mullins’ Construction and Infrastructure Law Blog): Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd., handed down by the Second District, California Court of Appeals.  The parties, one an American company, the other Chinese, had agreed in their contract that in the event of a dispute they would accept service by FedEx.

Oops.

You already know how this is going to go.  A dispute arises, the Yanks use FedEx to send process to the Chinese defendant, the Chinese don’t answer, the Yanks get a default, hilarity ensues.

Except there’s nothing funny about it.  Right now, the Chinese Central Authority is taking well over a year to serve defendants pursuant to a Hague Service Convention request.  But you can’t just use FedEx because it’s quick & expedient and the package absolutely, positively needs to get there overnight needs to get there in fewer than three weeks.  The California Court of Appeals got it right; using FedEx was manifestly wrong given China’s objection to Article 10(a).  And if you dig even deeper, that’s because a Chinese party lacks the capacity to accept process that isn’t served by a Chinese court official.

What the drafting attorneys didn’t realize is that you simply can’t do it by mail– the Hague Service Convention controls, and the “postal channels” option is only allowable where the destination country doesn’t object.  More likely, the Chinese company’s lawyers knew exactly what was going on, and the U.S. party’s attorneys were unfamiliar with the Chinese government’s declarations to the Convention (they object!).

To be blunt…

No, Article 10 doesn’t give you an out in China.

Two thoughts come to mind— two easy methods which I’ve addressed before, multiple times, and which would have prevented this fiasco and saved everybody a whole lot of heartache– except the Chinese defendant:

1.  Designate an agent for service.

Addressed initially in Five Essential Things… and later, elaborated on in the aptly titled Five Essential Things– Elaborated, Part 1: Service Agent.

Had the contract directed service to the Chinese party’s counsel or other appointed representative in the United States, there’s no occasion to transmit the documents abroad for service, so the Convention would not apply.  Those are the magic words straight out of Article 1.*  It’s perfectly legal; in fact, it’s the whole bleepin’ point to registered agents.  And it’s easy, too.  Look no further than Dover, Delaware, where you can’t throw a rock without hitting a registered agent of one sort or another.

Sure, this may be a challenge, depending on the foreign party (a challenge getting them to agree, that is).  But it would avoid the jurisprudential problems that the Rockefeller Tech agreement ran into.

2.  Contractually agree to waive service.

Addressed in “Waive” vs. “Accept” service… massive difference, and addressed in Serving Overseas: The Carrot and Stick of Waiver.

There really is a massive difference between the two ideas– and in federal court, defendants are required to waive, even if they’re overseas.**  Again, if the offshore defendant waives, then there’s no occasion to transmit the documents abroad for service; magic words again, Hague inapplicable.

Sure, you’ll probably have to duke it out over the refusal to waive, and thus will probably have to serve anyway, but at least it’s better than flying blind.

In short, don’t throw that “we agree to accept service by FedEx” clause into a contract when you can’t reasonably predict that it’ll be enforced.

* As the Rockefeller Technology court points out,”(the present Convention shall apply in) all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  Pretty straightforward, and the heart of the seminal case in Hague Service Convention doctrine, Volkswagenwerk Aktiengesellschaft v. Schlunk.

** 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.”  Lest ye rely on 4(d)(2) to refute that idea, recognize that 4(d)(2) is about mandatory fee shifting, which only applies to domestics.  The tricky detail of 4(d)(1) is that it specifically mentions 4(f), which only applies to service abroad.

Update, October, 2019:  Special thanks to Professor John Coyle of the UNC School of Law in Chapel Hill, as well as colleagues Robin Effron and Maggie Gardner of Brooklyn Law and Cornell Law, respectively, for their article published last week in the UC Davis Law Review Online.  Contracting Around the Hague Service Convention delves deeper into the of the issue, rightly pointing out the risks of waiver.  To say that my ego has been tickled by a couple of footnotes in the article is gross understatement.

Update, April, 2020:  And special thanks to Ted Folkman at Letters Blogatory, for posting about the California Supreme Court’s reversal of the appellate decision discussed supra.  Ted posts the Court’s opinion here.  In short, the opinion conflates the ideas of waiving service on one hand, and accepting service on the other.  I’ve argued before— and still do argue– that they’re not the same thing.  From page 20 of the opinion…

With respect to notice, paragraph 6 of the MOU stated the parties “shall provide notice in the English language to each other at the addresses set forth in the Agreement via Federal Express or similar courier,” while paragraph 7 clarified the parties “consent to service of process in accord with the notice provisions above.” Construed in tandem, these provisions leave little doubt the parties intended to supplant any statutory service procedures with their own agreement for notification via Federal Express. Section 1290.4, subdivision (a) gives effect to such an agreement by requiring that documents “be served in the manner provided in the arbitration agreement for the service of such petition and notice.”

(Emphasis added.)  Okay, fine.  The parties waived service in paragraph 6.  But they turned around and conflated the waiver with acceptance in paragraph 7.

The opinion goes on…

The MOU’s language confirms the parties’ intent to replace “service of process” with the alternate notification method specified in the agreement. This circumstance distinguishes Abers v. Rohrs (2013) 217 Cal.App.4th 1199, which construed section 1290.4, subdivision (a). Abers involved leases with arbitration clauses that included a provision stating notices could be sent by mail. The homeowners in that case filed a petition to vacate an arbitration award and mailed it to the opposing party. Abers rejected the homeowners’ claim that the mailing satisfied section 1290.4, subdivision (a): “Their argument fails because it conflates the concept of providing notice with the concept of serving process.” (Abers, at p. 1206.)

That is exactly what happened here.

 

Update, August, 2020:  Ted has filed a cert petition with the Nine Wise Souls.  See it here.

 

 

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.]

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’.

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.

The Ha’Penny Bridge, across the River Liffey, Central Dublin.

This morning, Peggy and I awoke in Dublin, the capital of the Republic of Ireland.  I’m incredibly fortunate to have traveled extensively since I was a young kid (Army brats never really shake the wanderlust), but until yesterday, the Emerald Isle was an unchecked box on my list.  I’ve been waiting decades for this, and it does not disappoint.  We’re here not only to see the sights, but also to build relationships with colleagues who serve Irish defendants for my clients.  It’s a great mix of business and leisure.

Throughout Dublin, there’s an undercurrent of revolutionary spirit, even a century after the Easter Rising and the subsequent advent of the Irish Free State.  Homages to Daniel O’Connell and Michael Collins and Wolfe Tone are everywhere, much as Washington and Jefferson and Franklin abound in the District of Columbia.  Atop the political history is a layer of culture and vibrancy– and even refinement– that make Dublin truly a world-class capital, even though it governs a country far smaller and less populated than my home state of Missouri.

On the downside, Dublin is expensive, it’s touristy, it’s aged, and it’s a bit grimy.  Just like every other big city.  Hard to criticize a major metro for any of those things when it has so much else to offer.

But the most striking thing I’ve noticed about Dublin is its distinct multicultural atmosphere.  This is, as far as I can tell, among the most European of European cities, perhaps second only to Brussels.  In a few hours’ time, I heard a dozen different languages and encountered people of every hue, faith, and economic class.  It’s not a stretch to predict that, following Brexit, the Celtic Tiger will awaken once again and make Dublin the English-speaking capital of a renewed Europe.

That’ll be exciting to watch.

Aside: I highly recommend the concept of VRBO– Vacation Rental By Owner.  It’s really a cross between AirBnB and a traditional hotel.  For about the same cost as a standard double room in a Hilton or Intercontinental, we have an entire apartment in Smithfield, just steps away from the Jameson distillery (they don’t make whiskey there anymore, but that’s beside the point!).  If you have occasion to visit Ireland’s capital, check out Dublin City Rentals.  Ask for Séamus.  He’s a good fellow.  (And his name is Séamus— there is no name more Irish.)