Search results for: how to serve process in

Yabba. Dabba. Doo.

“The defendant works at…”

Hmm.  Do you happen to have a home address?

“No, just his office.”

Let’s hope he’s there.  And that we can get in the door…

That exchange happens between lawyers and process servers daily.  And it’s a challenge, because defendants can’t be served by substitution at their place of business.  Under most courts’ rules, they can be “sub-served” at home, usually by delivery of the documents to “someone of suitable age and discretion who resides there” or some variation on that theme.*  In other words, even if Fred isn’t home, you can still effectively serve him by handing the summons & complaint to Wilma.  (Pebbles is just a toddler, and doesn’t really talk.  Besides, she’s not even tall enough to answer the door yet.)

Likewise defendant Barney.  He’s not home, but if Betty answers the door, you’re on solid ground.  (Avoid Bam-Bam.  That kid’s dangerous.)

But you can’t get Fred or Barney by handing the docs to grumpy Mr. Slate down at the gravel pit.  If they’re having lunch down at the Water Buffalo Lodge when your stone tablet server rolls up, you’re out of luck– unless the server knows the secret handshake.

I’ll stop with the Flintstones analogy, but notice something… I haven’t once mentioned the Hague Service Convention, which is the centerpiece of this blog and the primary reason for its existence. Why?  Because the challenge is the same wherever you go.

The story is critical going across borders, because the conversation up above happens more frequently between me and my clients than you can imagine.  It’s even more important to have a home address for defendants offshore, for several reasons:

  1. Officials in civil law jurisdictions are more sensitive to defendants’ privacy than are common law process servers.  As such, they prefer to serve at a residential address if for no other reason than to save Fred & Barney some embarrassment.
  2. Just like here in the U.S. and Canada, if the defendant isn’t actually at the workplace when the serving officer shows up, that officer isn’t going to just sit in the lobby and wait.  Even your local process server won’t do that without an extraordinary run-up in costs.
  3. You don’t get to dictate to foreign authorities how & when to serve.  You can only indicate where the defendant can be found.  In the U.S. and Canada, we can direct our process servers to go back and try again or to attempt a different address, but we don’t have that luxury “over there”.  Simply put, you’re not going to tell a Swiss bailiff or Chinese court official how to execute his duties.  It just doesn’t work that way.**
  4. The “someone of suitable age and discretion” requirement may not even pop up.  In some jurisdictions, the docs can just be slid into the mail slot, or the officer will slap a Post-It note on the door telling the defendant to come and get his documents at the Post Office or local police station!

It’s a harsh reality, but this is a problem both at home and abroad.  Hague rules don’t mitigate the problem.  If anything the problem is exacerbated.  If you can get a home address, do it.  It may not be the end of the world if you can’t, but a home always presents better odds.

* Fed. R. Civ. P. 4(e)(2)(B), in case you’re curious.

** It’s truly baffling– clients routinely say to me (with a straight face, no less!) to “just tell the Chinese to (do XYZ…).”  I even had opposing counsel make that argument in a hearing once.  The judge audibly giggled.  IT DOESN’T WORK THAT WAY, FOLKS.

Author’s Note:  This post was almost about The Munsters, but Fred is just funnier than Herman.

Then again…

Herman Munster went to law school?!
Federal Courthouse, Sioux City, Iowa. I worked in that building for three years back in the Ice Age. (GSA Image)

Y’all, if you know you’re going to be removed, just initiate the case in federal court to begin with.  It’ll save everybody involved a whole bunch of time and headache.

Lots of plaintiffs’ lawyers gasp when I say that.  They look at me like I have three heads.

  • “Are you nuts?”
  • “Oh, you’re a comedian now?”
  • “Clearly, you’re an idiot.”

I certainly understand why they react that way.  State juries are kinder to plaintiffs, generally speaking, than federal juries.  And it makes perfect sense to go where your odds of success are better.  But the reality is, if you’re going to get yanked to a federal venue anyway, you’re a whole lot farther ahead to file there at the outset.

Look, I’m an AAJ member for a reason.  I’m a plaintiffs’ guy.  I like holding defense lawyers’ feet to the fire.  A huge part of what motivates me in this business is playing a small part in making injured parties whole, whether that injury is physical/emotional, financial, or constitutional.  And nine times out of ten, I’ll agree with you that state court is a better place to be than 40 Foley Square.

But purely from a service of process perspective, when you have offshore defendants, it’s a whole lot cheaper, a whole lot easier, and a whole lot less complex to operate under Fed. R. Civ. P. 4.  Several reasons:

  1. Time.  You’ve got a friend in 4(m).
  2. Certainty.  Rule 4(f)(1) specifies the application of the Hague Service Convention.  Thanks to Schlunk, you don’t have a choice in the matter, but you won’t have to argue with the judge when you can simply cite that rule.
  3. Flexibility.  If the Convention isn’t applicable, 4(f)(3) lets you serve electronically.
  4. Savings.  Notice pleading keeps translation costs down, while those of us in fact pleading states have to submit volumes, lest we waive a particular argument.

If you practice in Missouri and have ever scratched the surface of Rule 54, you know that the state’s rules on service of process aren’t incredibly well thought-out.  Or they may have been well thought out in 1973, but they haven’t gotten a deep-dive review in quite some time, so they really don’t reflect the realities of life in the 21st century.  When a client calls me from St. Louis or Cape Girardeau, I know that just getting a summons issued could be a massive pain in the neck.

Contrast this with the likes of Colorado (among other states), where the Supreme Court has substantially adopted the Federal Rules of Civil Procedure– not verbatim, but in large measure.  I know that litigators in Denver or Grand Junction aren’t too hassled when it comes to process, and I know they’ll enjoy the same operating system in either venue.

Now, if you can destroy diversity and think you have a better shot in state court, by all means– tee it up.  But if federal venue is inevitable, save yourself some turmoil in the beginning.

 

Buckinghamshire County Council, Ros Tyrrell, via Wikimedia Commons.

Yet another “FAQ” post, if you will…

“Hey, Aaron, the complaint is under seal, and the judge has ordered me to instruct the process server that he’s under the same obligation as I am.”

I respond: Well, that’s all fine and good, if you’re using private agent service in a country that would enforce the seal.  But Article 5 service via a Central Authority?  In a word, fugghetaboutit.  Once this thing goes overseas, all bets are off.

See, the seal has absolutely no coercive effect on a foreign authority except under the doctrine of comity, and it really has no practical effect on a private agent overseas.  At least, not one who isn’t somehow accountable to the court, and isn’t in a country that would enforce the seal.

With agents, ultimately, it comes down to trust, and that’s not the end of the world.  If the agent understands the gravity of the situation, and the real, palpable concerns that prompt the seal in the first place, you’re going to be okay.*

But when you involve foreign government & judicial authorities, all we have to go on is an argument that (1) U.S. courts would respect a judicial seal ordered by a foreign court, and (2) our courts have done so before, so (3) would you keep things under wraps, Monsieur le Juge, s’il vous plaît?  Pretty please?

Foreign officials are under no obligation within the Hague Service Convention to keep things confidential.  And in many places, sadly, Hague requests are handled by low-level bureaucrats at some point in the chain of custody** and they have zero motivation to keep things under wraps, especially in response to a U.S. judge’s edicts. What effect that has on the procedural posture of the case, I cannot say, but the court must understand that its authority to dictate terms ends at the shoreline.

* The agents I work with get it.  They understand the seal and they understand that, although they may not suffer any legal penalties in their home jurisdiction, they’ll never get another job from me.  But if I don’t have a trusted agent wherever you need to serve, I won’t even make assurances, much less guarantees.  Simply put, I can’t guarantee anything once the documents go abroad.

** For lack of a better word.

Bayeux Tapestry – Scene 57: the death of King Harold. Myrabella via Wikimedia Commons.

Back when dinosaurs roamed the earth, I took Civil Procedure from a couple of highly talented professors.  One was among my favorite teachers of all time— he taught the concept of joinder with a shopping bag full of Beanie Babies™ and, for some baffling reason, a Jessie the Cowgirl™ doll from Toy Story 2.*  On the surface, that’s a very weird thing for a licensed attorney to put into a blog post, but the fact is, generations of JD’s from the University of Missouri-Kansas City know joinder cold because of Jeffrey Berman’s frequent flier card at Toys ‘R’ Us.  Third-party claims, cross-claims, counterclaims? Yeah, we got this.

That said, due to the compressed nature of that semester, and the reality that you just can’t learn everything you need to know as a 1L, we never really touched on certain basic concepts.  Like “how do you serve process?” or “why is the judge such a grumpy gus and how do I assuage his ire?” or “is it too late to get my LSAT fee back?”

Notably, we never really delved into the nature of subpoenas– neither the theoretical nor the practical.  They were mentioned in the broader discussion of discovery, where we had to understand arcane Latin phrases like ad testificandum and duces tecum.  But it was naturally assumed that if you wanted somebody to cough up evidence, all you have to do is send ’em one of these things.

Subpoenas serve a two-fold purpose.

It wasn’t until I was well into practice that I really gave the dual nature of subpoenas much thought, as I was talking to a client one day about serving a subpoena abroad.**  It turns out that, while her third-party in Country X was perfectly willing to produce (they detested my client’s party-opponent), they were deathly afraid of a lawsuit if they produced without a subpoena.  They wouldn’t do it without some coercive document that would force them to do what they wanted to do anyway.

It dawned on me that, sometimes, a subpoena is an offensive weapon– a sword– used to force someone to bend to your will.  At other times, it’s defensive, acting as a shield to protect an ally who has your back.  This is certainly not a novel idea– it’s a straightforward concept that should simply be understood.  I’d just never given it any thought before that conversation.

So how does the shield benefit somebody overseas?

Truth is, it really doesn’t… or rather, it can’t.  Keep in mind that a U.S. subpoena has no coercive effect abroad, unless it’s directed at a U.S. national– and even then, don’t be so sure it can be done.  If it’s merely a matter of effecting service to satisfy the court, and the third party is willing to produce, the judge may approve mere service.  Here’s the progression in the federal rules, with a problematic quirk:
  • Rule 45(b)(3) governs service of a subpoena abroad.
  • It incorporates 28 U.S.C. § 1783.
  • § 1783 impliedly incorporates Rule 4(f)– service “shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country.”

Okay, that might happen, or it might not (far too many variables to address in this space).  But note the fly in the ointment:  Rule 45 and Section 1783 apply specifically to “a United States national or resident who is in a foreign country”.  Neither of them delves into non-U.S. persons.

In short, there is no direct prescription for serving a subpoena on either third-party.  All you can really do is ask them.  Otherwise, you’re looking at filing a Hague Evidence Request or an old-fashioned Letter Rogatory— it would still take action by a foreign court to compel the production.

That compulsion has to be there in order for either the sword or the shield to do any good.
* COMES NOW plaintiff, Buzz Lightyear…

** Hint: theoretically, it’s possible to serve it, but that doesn’t make it effective.

Trafalgar Square, London.  Just a few blocks from the Royal Courts of Justice and England’s Central Authority.

Client queries: “hey, Aaron, the clerk says the Hague Service Convention requires certified copies of the Summons and Complaint and something called an Apostille.  Where do I get that?”

I get some variant of that question pretty regularly, most often from colleagues within just a few miles of me.*

For starters… no, the Hague Service Convention says nothing of the sort.

Sure, at one time, some Hague Central Authorities required court-certified copies to be submitted (they questioned the validity/authority of a document rolling off my laser printer), but as e-filing has become a global norm, rather than an outlier, this problem has faded away.  And sure, some local judicial authorities balk at the lack of all the stamps and ribbons and pretty little bows that adorn legal documents in their systems, but Central Authorities seem to coordinate pretty well with the locals nowadays, and have all but eliminated the problem.

In fact, the Hague Service Convention specifically abrogates the need for either certification or an Apostille.  Article 3(1):

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.

(Emphasis mine.  For the record… legalisation?  That isn’t a typo.  They spell it with an S in diplomatic English.  Personally, I think the Z ought to be there, but they didn’t ask me.)

If you’re curious about what an Apostille even is, see here for a fun primer.  They’re awfully handy instruments to confer legal effect on documents sent abroad, but they’re wholly unnecessary for Service Convention purposes.

Point is, if the clerk tells you that special formatting or authentication is required to properly serve a defendant in a Hague jurisdiction, that’s simply incorrect.  All they need to do is format the summons as if it’s to be served on the other side of State Line Road, et voilà.  The docs are ready to send my way (or a translator’s way, as the case might be).

What gets served (and in what format) is determined by the forum court’s own rules… the Hague Service Convention only delves into how.

* Why this stuff happens most often in my own county is beyond me.  Apparently, not quite everything is up to date in Kansas City.

The Peace Palace, The Hague. (This shot was taken in December, 2019, as the Rohingya genocide case was being argued before the ICJ.)

“They tell me I have to serve through The Hague.”

I hear that phrase at least three or four times a month, and while I forego the inclination to offer that Hague requests don’t actually get sent to Holland (unless they’re being served there), I do have to clarify a couple of thoughts on the matter very early in every conversation.  Above all, if a defendant is to be served in a fellow Hague Service Convention jurisdiction, the service has to comply with the Convention– simple as that.  And if anybody tells you otherwise, introduce them to the Honorable Sandra Day O’Connor and Article VI of the U.S. Constitution.

More specifically, tell them to read Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). It’s a humdinger.

Beyond that, the concept of “Hague Service” can mean quite different things depending on where the defendant is located.

To my callers’ original point, yes– service in a Hague country must comply with the treaty.  But that means different things in different places.  In some jurisdictions, that compliance doesn’t necessitate the involvement of a foreign government.  In others, the involvement of the foreign government isn’t just a good idea; it’s compulsory.  Once you’ve identified where the docs are going, a bit of strategic analysis may be necessary.  Such analysis also may not be possible.  Some examples:

  • China (other than Hong Kong and Macao):  forget any analysis, because there’s only one way to properly do it… an Article 5 request, using a standard Hague Request Form, commonly called a USM-94 here in the states.
  • Germany: likewise.  USM-94 or forget it.
  • Switzerland: ibid.
  • Mexico: same.
  • Japan, Korea, India, Greece, Norway… yep.  Getting the picture?

There are many others where mail service is available under Article 10(a)– although I contend that it’s a horrible idea under the Convention,* latched onto only by lazy or cheap lawyers who aren’t overly concerned about actually proving service.  In many places, you really can just hire a process server or local counsel or a local bailiff to serve.  Among them:

It bears repeating… the most important bit of information in serving process is “where?”  Nothing else matters unless the defendant can be located.  And once located, analysis of options may or may not be possible.

* In some rare situations– only in non-Hague jurisdictions– mail is actually the best starting point, but only because no truly better options exist.

(Wikimedia Commons)

[Author’s Note: this applies to federal practice!]

Another quirk comes across my desk now and again that seems, on the surface, to be fairly prophylactic.  Realizing that the Hague Request I filed in China months ago will take a while longer to come back, my client petitions the court to extend the Rule 4(m) service deadline by another 90 days.  This is pretty pro forma stuff, so the judge says sure, that’s okay.  Another 90 days go by and the court wants to know just what in the hell is going on here, counsel… why haven’t you gotten this served yet?  Didn’t I grant you an extension already?

Client comes to me and asks for an affidavit in support of his motion, confirming for the court that everything is a-okay , the wait is normal, and “would Your Honor pretty please grant my client’s motion to extend?”

Of course, I’d be happy to do that, but here’s the problem with such an affidavit and motion:  THERE’S NOTHING TO EXTEND.  The 90-day deadline in Rule 4(m) does not apply to you.  Full stop.  I’ve written about this issue before, in FRCP Amendments clear up 4(m) just a bit and in You’ve got a friend in 4(m).  From the latter post:

Outside the U.S., plaintiffs are subject to a reasonable diligence  standard, which usually just means that they have to start the ball rolling within 90 days.  As long as they’re not dilatory (I had to look it up… they’re not dragging their feet), even the grumpiest of judges isn’t going to dismiss the case, especially if the defendant is in one of the single-method/longer-wait countries like China or Mexico or India.  This is especially true amid the Covid-19 pandemic– judges understand.

That rule, in its entirety (pertinent in bold):

(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).

Hon. Robert Sanders, of “jibber jabber” and “poopycock!” fame.

Right at the outset of a service project, I tell my clients (lawyers all) that service requests to many countries will take well over a year to produce a proof– sometimes two years– and that’s not a problem because of the safe harbor in the last sentence of 4(m).  But when you ask the court to extend a non-existent deadline, you’re effectively telling the court that the deadline applies to you.  That’s a huge problem where the judge is a grumpy fellow who doesn’t get it.

The best course of action is simply to notify the court: “Now comes plaintiff to record the submission of a properly formatted Service Request to the Central Authority designated by (country’s) declarations to the Hague Service Convention, and to advise the Court that plaintiff’s litigation support attorney expects that the procedure may take two years to complete.”  Attach a copy of the Request Form and shipper’s delivery receipt, et voilà.  You’re done.

If the judge barks at you six months later, refer Hizzonner to the plain text of 4(m), and if need be, to the seminal case interpreting it in overseas cases, Nylok Corp. v. Fastener World Inc., 396 F. 3d 805, 807 (7th Cir., 2005)…

The explicit language of this rule makes it very clear that the 120-day(*) limit is inapplicable in cases involving service in a foreign country. This rule seems to recognize that the timeliness of foreign service is often out of the plaintiff’s control.  (…)

Generally, a plaintiff is required to serve process upon defendants within 120 days after the complaint is filed. Rule 4(m), however, provides an exception in cases where service must occur in a foreign country.

Pretty straightforward stuff– stuff that eliminates the need to extend anything.  Recognize that the reasonable inclination to extend actually ends up causing more problems than it solves, and leave it alone.

* The 120-day limit referenced in Nylok pre-dated the 2015 amendments that reduced the time to 90 days.

Here’s the progression of events when we file a request for service under Article 5 of the Hague Service Convention:

  1. Have the documents translated into the language required by the destination country (or as necessary under the defendant’s right to due process).
  2. Fill out the Request (the vaunted Form USM-94 in U.S. practice).
  3. Send everything to the appropriate Central Authority.
  4. Wait.  (This is where service happens.  It’s also where the Authority generates the Hague Certificate.)
  5. Receive proof of service.  Hopefully.  After a few weeks, a few months, or (depending on where it went) a couple of years.  <– That’s not a typo.

To be sure, in the vast majority of cases, that progression happens without a hiccup.  The world’s governments have been doing this thing since before I was born (I’m a ’71 model), and they really do have it down to a system– albeit an incredibly slow one in places.

But in a single day at the end of last month, no fewer than four of my clients pinged me to say “hey, I just got off the phone with opposing counsel telling me their client was served.  Can you confirm that?”  [Short answer: no.]

“Well, when are we going to get a proof?”  [Short answer: when the foreign Central Authority sends me one.]

See, the fact is, things just don’t work as quickly overseas as they do here on this vast continent called North America.  U.S. and Canadian lawyers are used to having our defendants served within a matter of hours.  Here, it’s a fairly pro forma exercise unless the defendant is a sneaky sort of human being, conniving to evade our wily agents of justice.  But add a bureaucratic procedure to the mix and even our wheels turn more slowly that we’d like.

What happened to me four times in a day last month is routine– truly not out of the ordinary.  And my clients are justifiably perplexed when I can’t tell them their defendant has been served, while their opponent clearly seems to know all about it.

It’s really very simple.  Let’s lay a hypo over the progression outlined above.  Say you’re a litigator who files a lawsuit in the U.S. District Court for the Western District of Iowa, naming a Korean corporation and its Arizona subsidiary as defendants.  The Arizona outfit gets served about twenty minutes after you email the documents to a process server in Phoenix.  Serving the Korean mother ship takes more time and effort (not to mention cost) but, wise professional that you are, you hire a consulting attorney to coordinate the matter for you.  We’ll call that guy Moses, just for funsies.*

  1. Moses has the documents translated into Korean.  (The Koreans require translation, regardless of the defendant’s competence.)
  2. He fills out the Request form.
  3. He sends everything to the Central Authority in Seoul.
  4. You wait.
  5. Three months later, your phone rings.  It’s the same guy you talked to in Arizona who represents the subsidiary, who tells you he represents the parent as well, and demands that you produce a proof of service or he’s going to file a 12(b)(5) motion.
  6. You call Moses to discuss the matter, and he assures you that this is perfectly normal.  You can advise opposing counsel that he has 21 days to answer the Complaint, and should really take a look at Rule 4(l)(3) before spouting off.]
  7. Another two months later, Moses sends you the proof of service that just rolled into his office from Seoul.  Having received no answer from the fellow in Arizona, you staple a default motion to it before filing it.

It is perfectly normal for your opposing counsel to call you before I even know that service has been effected.  When I say that you may know before I do, that’s because it happens all the time, and is no reason for alarm.

*  In my twenties, I served on the board of my church.  One Sunday, we had a guest priest sub in for the Rector, and over a drink after the service (Episcopalians do it right), he said to me in a very High Church accent, “Aaron, did you know that Moses talked with God about godly things, but Aaron argued with God about worldly things?”  Um, yyyyyeah.  That sounds about right.

(Image credits, both via Wikimedia Commons:  crossed fingers by Evan-Amos, telephone by Steimes.)

 

 

The office of New Hampshire’s Secretary of State. Royalbroil via Wikimedia Commons.

A slew of cases have come across my desk lately, involving plaintiff attorneys who have ostensibly already served foreign* defendants via statutory agents in the forum state.  After plaintiff’s counsel spends several thousand dollars to defeat a motion to quash, most of them conclude that it might have just been cheaper in the first place to serve the defendant in the foreign jurisdiction instead of via the statutory agent.  (I make that argument regularly on the few listservs to which I subscribe– why not save yourself the aggravation and just serve the defendant where they are, instead of going the seemingly cheap & easy route?)

The best examples of these “statutory agent” situations are (1) foreign entities doing business in the forum state and (2) non-resident motorists who drive in the forum state.  For instance, let’s say a statute says specifically that “any act by a foreign entity to conduct business in this state shall by implication appoint the Secretary of State as its attorney in fact for the purpose of service of process in any action brought in the courts of this state.”

  • In short, if you make money here, we can serve you here via the SoS.
  • Or, the corollary, if you drive here, we can serve you here, perhaps via the DMV Director.
  • Or, in the case of Volkswagen in the 1980s, if you form a subsidiary here, we can serve you here via that subsidiary.

It seems pretty fair and it seems pretty straightforward.  But looming large over the analysis is a due process question… which is to say, maybe it’s not so fair after all.  In my March 2017 post, “You can’t simply serve a U.S. subsidiary,” and two weeks later in “You Can’t Simply Serve the Secretary of State,” I cautioned against assuming that serving via these statutory agents was compliant with due process and with the Hague Service Convention.

The threshold question:  where does lex fori deem service to have been effected?

  • If service is deemed to be effected in the forum state, you still have to undertake a due process analysis.  Is it reasonable to calculate that the statutory agent will do what’s necessary to ensure that the defendant is actually afforded notice and an opportunity to defend?  (See Mullane.)
  • If service is deemed to be ultimately effected upon delivery in a foreign country, you have to analyze whether the Convention applies, and then you have to examine what the statutory agent actually does with it.
    • Does the statutory agent dig deeper to see if translation is required?  (Highly unlikely.)
    • Does the agent undertake to translate the documents?  (Bet against it.)
    • Does the agent properly convey the documents to a foreign power?  (Odds are, they don’t read this blog.)
    • Does the agent even have the authority to make such a request?  (Again, highly unlikely.)

In all probability, the agent simply drops it in a FedEx box and calls it good.  In much of the world, that doesn’t get you where you need to be.

Past the threshold, let’s say you do successfully serve the statutory agent.  Then what?

  • Wait 21 days (the time indicated in a federal summons) and then simply move for a default?  Hardly.  Any judge worth his or her salt is going to inquire about your methodology.  You’re going to have to demonstrate that the defendant is truly aware of the proceedings and is merely blowing off the obligation to appear.  Mullane still looms large.
  • Or let’s say the defendant actually does show up, but in a limited appearance to quash your service.  What then?  You could spend far more to win that battle then you would spend to simply serve the defendant directly in the first place.

Yes, you may identify a statutory agent, but that doesn’t mean the agent would be a truly effective conduit for service.  In a whole bunch of situations, it still ends up being less costly to serve overseas pursuant to the Convention.

  1. Defense counsel will spend money to argue, so it’ll actually be cheaper for you to just hire somebody like me.
  2. In a PI case, outside assistance counts as an expense… your DIY effort to serve by yourself comes out of your contingency.
  3. You get a default judgment because the statutory agent doesn’t properly forward the summons… then what?  Go overseas to enforce the judgment?  Your odds on that are pretty slim.

It’s truly not so arduous to jump through some Hague hoops, especially if you have help (wink wink, nudge nudge).  And jumping through those hoops can really prevent headaches down the road.

* Foreign can mean different things.  There’s foreign in the “you need a passport to go there” sense, and foreign in the “across State Line Road” sense.  The former is general in nature, while the latter is a term of art delineated by interstate and international boundaries.  In the statutory sense, use the term of art.

Yeah, Toy Story came out 25 years ago.  But you can catch it today on Disney Plus.  Sing along with Randy Newman.  Yes, I know you’re 54 years old and your kids are grown.  Watch it anyway.  It’ll do your heart some good.

One of the biggest fears my clients face is dismissal under a forum court’s deadline for service.  In federal court, that means 90 days, and in most states, it means anywhere from 60 to 120.  They’re often frantic about the possibility that some grumpy judge is going to dismiss them.  I strive mightily to put their minds at ease.

Fear not, brave Counselor.  You’ve got a friend in Rule 4(m).

The gist of Rule 4(m)?

“Get the summons served in 90 days or you’re out of here.  But, oh yeah… the 90-day deadline only applies if the defendant is in the United States.“

Outside the U.S., plaintiffs are subject to a reasonable diligence standard, which usually just means that they have to start the ball rolling within 90 days.  As long as they’re not dilatory (I had to look it up… they’re not dragging their feet), even the grumpiest of judges isn’t going to dismiss the case, especially if the defendant is in one of the single-method/longer-wait countries like China or Mexico or India.  This is especially true amid the Covid-19 pandemic– judges understand (as of this writing, the U.S. lags behind just about every other country in dealing with it).

Unquestionably, you have to serve according to the Hague Service Convention, if it applies.  Rumors abound that Central Authorities are all shut down (no, they’re not) and that everything everywhere has just stopped (no, it has not).  Sure, time expectations vary wildly from just a few months ago, pre-pandemic [see Yes, They’re Still Open, my post two weeks ago, for more on that], but…  even if Central Authorities do shut down again, and even if they do take seemingly forever, there’s still no reason to not get things lined up to go.  Set requests up so they get into the pipeline as soon as possible.  A few reasons why:

Grumpy judge. ^^^
  • They’re Called Deadlines For A Reason…. where they actually apply.  Adhere to them as best as you can.
  • First in, first out… that’s how most Authorities roll.  So if you wait until things normalize, you’re at the back of the line, waiting to get on the Buzz &Woody ride at Disney World, distraught that your ice cream is melting.
  • Having only one option in Germany doesn’t mean you have only one option in the Netherlands or England.  They can go pretty quickly with the magic of Article 10(b).
  • If translation is required, it’s going to take some time, too.
  • Just about every state (sorry, Wisconsin & Michigan) has a safety valve built into procedural rules, but reasonable diligence is still key.*
  • Even after service is effected overseas, proof takes longer than you think, so it’s best to at least initiate things as early as is practical.**

You’ll be glad you got everything moving.  Just don’t fret that overseas authorities take so long to finish the job.

 

Yes, I know it’s summer and we’re in the middle of a global health crisis. Watch this movie anyway. It’ll brighten your mood.

* Of particular interest: New York, whose view on the matter is beautifully illustrated in Bumpus v. NYC Transit Authority.  CPLR 306-b requires service in 120 days, but Bumpus specifically acknowledges circumstances beyond the plaintiff’s control, including the delay caused by Hague strictures.  [Bumpus also specifically reminds me of A Christmas Story, so it’s incredibly easy to remember the citation.]

** Be careful about removal, though.  If you file in state court and anticipate that a U.S. defendant will drag you to the federal court up the street, you might want to wait.  That’s not foot-dragging– it’s making sure things are done properly.