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[Originally published at vikinglaw.us]

No, really.  There is truly no such thing.

There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue.  There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt.  Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.

Tried & true concepts in litigation are changing at extraordinary speed (a platitude, to be sure), and litigation involving foreign parties and witnesses is becoming a major challenge for attorneys and courts in every jurisdiction.

Fortunately, rules in most courts provide ample time for service, especially Federal Rule 4(m), which specifically abrogates a hard 90-day deadline for service where the defendant is outside the United States.  As long as counsel isn’t dilatory (I had to look that one up), the spirit of the deadline is honored once a request for assistance is handed off to a foreign authority.  At that point, a lawyer can only wait for the authority to accommodate the request.  [NB: Most states reach similar conclusions by either procedural rule or case law.  Wisconsin and Michigan are the lone holdouts, and even they may offer some safe harbor to litigants.]

Critical in this analysis is the mandatory and exclusive nature of the Hague Service Convention.  In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor wrote for a unanimous court that, where the Convention applies, its strictures must be followed.  The channels set forth by the Convention mean vastly different things in the various countries where it applies, and for the most part, this means the U.S. court hearing a case must usually wait patiently for service to be effected.  Simply put, our rules do not apply elsewhere.

Effective service abroad serve usually cannot be timed with a clock… several pages of a calendar comprise the better measuring device.*  In some cases, service can take over a year to be proved up.

Yet 4(m)’s safe harbor does not give an attorney unlimited time.  The dilatory among us face sure dismissal, and it takes a long time to reach that level.

* Exceptions to this:  parts of Canada, Australia, and England, where Article 10 negates the need for government channels to have a defendant served.  In rare cases, process can be served within a matter of hours, and proved within days.  But don’t bet the farm on this possibility.  Ever.

Image:  “10 O’Clock On A Sunny Summerday”, Robin Heymans, via Wikimedia Commons.  (For the record, Big Ben is the bell inside the tower.  The former St. Stephen’s Tower has been renamed Elizabeth Tower.)

We regularly encounter lawyers who cringe at the thought that the biggest expense involved in service of process abroad is often translation.  Their misconception is either that language is no big deal, or that translators are a dime a dozen.  Neither is true, but sticker shock can still be… well, shocking.  So how do you avoid it?

Easy.  Just pick an English-speaking defendant in an English-speaking country.  Or at the very least, pick a country like Israel or the Netherlands, where most everybody speaks English anyway so they don’t specifically require translation under the Hague Service Convention.

Otherwise, yes, counsel, you do have to translate that thing.  But the mere requirement to translate does not mean you can’t keep your costs down.  Here are a few tips to reduce the price tag:

  1. Keep brevity in mind.  Yes, this is difficult for lawyers.  We’re the most verbose race of people on the planet.  But remember that federal notice pleading gives you a great cost-cutting device.  A “short and plain statement of the claim” is all you need.  In state court, the pleading form varies, but there’s not a jurisdiction anywhere that actually wants longer pleadings.  The court just wants them to be complete, so even in a fact pleading state, don’t write as if you’re being paid by the word.  Just imagine you’re a 1L again, and your legal writing professor is barking at you to keep it under 1,000.
  2. Avoid exhibits where possible.  If you can simply reference an ancillary document, then just reference the thing.  Don’t include it as an attachment or exhibit.  Exhibits sometimes comprise 90% of a translation bill—often unnecessarily.  [Consult local rules, of course.]
  3. Ask your translation provider for a volume discount if you have a huge sheaf of documents (roughly 30,000 words or more).  Much of the provider’s cost lies in the set-up of the project—the administrative burden is the same whether you’re worth six hundred dollars or six thousand—so a lower price-per-word is warranted with bigger projects.
  4. And shop around—translation is a hyper-competitive field, much like law.  But be wary.  Just as with lawyers, a low translation price tag does not usually correlate with quality, and you often get what you pay for.  Ensure that the translation provider has at least some quality assurance process.  The project should go through at least two people’s hands (the translator and an editor), preferably three (including a proofreader).

Above all, don’t cheap out—and don’t let your client cheap out either—because it will come back to haunt you.

  • Bad idea:  “Hey, Maria’s parents are Mexican—she can translate the docs into Spanish for us.”
  • Worse idea:  “Rob in accounting spent a year riding his motorcycle across China after college.  Let’s have him do it.”
  • Worst idea:  “Google Translate.”

Never mind the fact that Maria is a fully qualified attorney whose time would be wasted on a translation project.  Never mind that Rob in accounting is a math guy precisely because his verbal skills are horrible.  Neither of them is a qualified translator, so get a pro to do it.

As for Google Translate…
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[A new platform called Google Advocate (“Advocate” is a verb there) should roll out any day now.  It will draft any legal document at the click of a mouse, for free.  It may inadvertently convey your house to your college roommate, but hey, it’s free.  What could possibly go wrong?]

A related caution:  your translation provider may suggest that you hire an outside agency to handle the Hague Service Request on your behalf.  While this is great advice, be wary here, too.  The translator may recommend an agency that is not qualified to undertake Hague requests.  In short, if that agency doesn’t have an attorney on staff to sign your USM-94, do not use them.  If you accept their assertion that it’s not a problem, you’re accepting a legal conclusion from a non-attorney (see here for a bit more detail).

Rosetta

U.S. court, U.S. plaintiff, U.S. defendant… everything about the case is American but one:  the defendant lives in Kaiserslautern.  Or Basel, or Xi’an, or Montreal—pick an overseas city.

When you serve a defendant in another country, you must observe the laws of that country, particularly where the Hague Service Convention applies.  Here’s why:

If the document is to be served under (Article 5), the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.”

— The Hague Service Convention, Article 5(3)

Note the key clause:  “The Central Authority may require…”.

They almost always do.  With the exception of Israel, Italy, and the Netherlands, every Hague member that wasn’t once part of the British Commonwealth (and one that still is) will mandate a translation from English into its own language.  Switzerland and Belgium are even more picky, requiring translation into a particular tongue based on which city the defendant finds himself in.

Even if the Central Authority does not require it, like in Italy or the Netherlands, the court officials and bureaucrats who handle the request down the line may have an affirmative duty to reject the request for lack of translation.

Best practice: eat the cost and do it anyway, because you will save your client a whole bunch of headache—not to mention money—as the case progresses.

The same advice applies to service under Article 10.  Although nothing in the Convention requires a translation for alternative methods, if the defendant is in a jurisdiction that wasn’t once a British colony, there is probably no such thing as a process server.  Service must be effected by a judicial official, so expect some sort of hiccup to set off a chain of events culminating in a dismissal.

And even worse, don’t play around and use Google Translate just to save a few bucks.  I love the thing—the camera function in the Android App is really handy for translating gelato flavors in Rome.  But it is utterly horrible for legal documents.  Do it the right way, and hire someone with the expertise necessary to do it professionally.   [The same can be said for undertaking Hague Service requests on a Do-It-Yourself basis.  Just like that home improvement project you started a year ago—but had to call a plumber to finish—it will cost you and your client more in the long run.  Outsource it!]

[Originally published at vikinglaw.us]

A particular quirk arises in serving a defendant if he or she is a U.S. servicemember stationed abroad.  For the most part, I explain to clients that such an objective is a tough one, so they might have to simply wait until the defendant returns to the United States.   [This is not, as one might assume, due to the Servicemembers Civil Relief Act (formerly the Soldiers & Sailors Civil Relief Act, 50 U.S.C. §§ 3901-4043).  That statute stays proceedings, tolls statutes of limitation, and provides a host of other protections to uniformed defendants, but it does not address service of process.]

Defendants must, of course, be served according to the rules of the forum court.  But when a servicemember is stationed in another country, they can only be served within the strictures of applicable international agreements.   The Hague Service Convention is chief among the governing treaties, but no less important are individual Status of Forces Agreements (SOFAs), which govern access to U.S. installations by civilians and local authorities.

Herein lies the quandary, with several contradictory components.  Unless the defendant has a discernible civilian address (that is, not located on a U.S. installation), standard methods of service will be unavailable.

  • Hague service is not available without an address.  If a defendant lives in a barracks or other on-post* housing, then they simply don’t have an address.  Of course, “1234 Eisenhower Drive” or simply “Building 2375” may be valid for telling friends where to gather for a social engagement, but the addressing system is most likely unknown to local authorities (both civil authorities and the post office).  It has no legal effect, and can change by the simple act of a clerk.
  • Even if the defendant does have a discernible on-post address, mail is generally not delivered to such an address, and local judicial authorities would most likely be denied access to the post under the governing SOFA.  (Process servers, where they exist, are afforded even less accommodation by post security.)
  • Forget about serving them at the office, especially if “the office” is an artillery range.  Even if a local judicial officer does gain access, those officers generally avoid serving anybody at work.
  • The Posse Comitatus Act prohibits the use of Army and Air Force chains of command for civil purposes, and various Naval regulations likewise create insurmountable roadblocks.  Urban myth advises that a plaintiff simply needs to ask a JAG (Judge Advocate General) office to effect service but this simply isn’t accurate.

So what is a plaintiff to do?  Several options are available, although odds of success are lower than with service on a non-military defendant.

  1. Wait.  Simply hold onto the summons until the defendant returns from his tour of duty overseas, and serve him upon his arrival stateside.  Of course, the court must be made aware of the hurdles to proper notice, so an order excusing non-service may be issued to protect the plaintiff from dismissal.
  2. Request leave to serve via U.S. mail at his known APO or FPO (Army/Air Post Office or Fleet Post Office) address.**  APO/FPO addresses are not tied to geography like a street address is.  If a unit stationed in Germany is temporarily transferred to Kuwait, a soldier’s address may not change–or if it does, the APO staff in Germany will automatically forward his mail to the new address as a matter of course.  In short, the soldier will get his mail.
  3. Request leave to serve by electronic mail.**  All U.S. personnel are issued email addresses for official use, and they are generally permitted to use those addresses for personal communication while stationed abroad.  Moreover, given the ubiquity of free email servers, it is nonsensical for an active duty defendant to argue that he/she does not have a personal email account.  And like APO/FPO addresses, email addresses are tied to an individual, rather than to a physical location, so treaty considerations are less daunting.  (E-mail’s acceptance as a means of effective service is growing, slowly but surely.)
  4. If the defendant happens to live in civilian housing (“on the economy”) and his address can be ascertained, serve via traditional channels.  This may come in different forms, so significant brainstorming is necessary.

Serving a G.I. isn’t as easy as serving other defendants, but it may still be possible with creative thinking.

* The author is an Army brat.  An Army installation is referred to as a post, and it is painful to call it anything else.  Not a fort, not a base, and certainly not a campus.  With all respect to the Air Force, Navy, and Marine Corps, you’ll have to substitute your own terminology on this one.  Post, base, installation… you get the idea.

** Use of APO/FPO mail or of U.S. military e-mail servers may run afoul of the Posse Comitatus Act.  The issue has not been addressed in case law as of this writing.

 

[Originally published at vikinglaw.us]

Good old 12(b)(6).  The Rolling Stones Rule.  Failure to state a claim for which relief can be granted (I can’t get no Satisfaction).

Pop-Art_-Mick_Jagger-_Öl_+_Acryl_auf_Leinwand_von_Silvia_Klippert

It’s the defense litigator’s go-to basis for dismissal.  Graceful, poignant, utterly classic.

Sure, the plaintiff was harmed.  Sure, the defendant caused it.  But there’s no law that says he’s liable for any wrongdoing.  Kick it, your honor.

When you get a 12(b)(6) dismissal, you’re a rock star.  You’re Mick Jagger.  Your client thinks you’re a genius and sends you a fruit basket with a bottle of Johnny Walker Blue and a $10,000 bonus check.  (That might be a stretch.)

But when a defendant is in another country, 12(b)(6)’s lesser known neighbors are more helpful.  And they should give pause to plaintiffs’ lawyers who don’t know what they’re doing.

Let’s say you’re in Germany.  You’re an engineer at German-Cars-R-Us, and your company was involved in some pretty nasty stuff—lying to regulators, lying to customers, lying to shareholders.  The story goes viral, and some guy in Kansas City who bought one of your cars six months ago now wants to sue you.  Individually.  Even though you didn’t have any involvement in the fraud, they’re throwing the book at everybody whose name was on a personnel list.

FedEx drops a packet on your desk (Hier unterschreiben, kumpel… sign here, pal).  The guy in the next cubicle speaks English and, mercifully, he translates page one for you.  Holy socks… it’s a summons to appear in a federal lawsuit in the Western District of Missouri.  They filed the thing a few weeks ago, and now you have 21 days to answer!

You find a lawyer in Kansas City (danke, Das Google) who gets to work on the case right away.  Fortunately, he speaks a little German, so you’re confident.  You send him twenty grand, and he files an answer to the complaint.  He litigates it, and you win.  But you’re out twenty grand.

Had he known about the law governing service of process abroad, he would have seen the simplest way to make the claim go away, and for a whole lot less than $20,000.

What would I have done?  I would have done nothing until the 91st day after the complaint was filed.  Then, I would have moved for dismissal under Rules 12(b)(4), 12(b)(5), and 4(m).

Why 12(b)(4)?  Because you don’t speak English.  It is rather difficult to understand a summons in English if you only speak German—and the plaintiff didn’t send a translation.  Your due process rights were ignored, so the process was insufficient.

Why 12(b)(5)?  Because the plaintiff’s lawyer completely ignored the Hague Service Convention.  Mail service (including FedEx) is ineffective in Germany, so service was insufficient.  For that matter, it’s ineffective in any Hague country if the case is being heard in the 8th Circuit.

Why 4(m)?  Because a plaintiff has 90 days to serve, or the claim has to be dismissed.  Now, that deadline doesn’t apply to service outside the United States, but the safety valve doesn’t give a plaintiff unlimited time—a reasonable diligence standard still applies.  If the plaintiff doesn’t even attempt proper service within the first 90 days, he’s out.

Bottom line—the plaintiff’s attorney was not only dilatory,* he also did it wrong.  So wrong, in fact, that the case against you should have been dismissed sua sponte.  Both sides have a malpractice claim against their lawyers, who should have come to one of my CLEs.

They could’ve been rock stars.

 

*Dilatory: unnecessarily pokey.  (I had to look it up, too.)

Image:  Pop-Art “Mick Jagger” by Silvia Klippert, via Wikimedia Commons (free license granted by the artist).