hot topic words in a 1958 dictionary.
Mick Haupt, Unsplash

Our business, navigating the minefield of the Hague Service Convention, has seen a pretty big uptick lately, particularly in the personal injury and IP fields. As litigators sue an ever-growing number of offshore defendants, they’re increasingly reliant on firms like ours to get those defendants served. What we provide those litigators is pretty straightforward and, once we’ve pinned down the appropriate or preferred method of service, it’s not difficult to offer time projections and cost calculations. Sticker shock can definitely be a thing, especially when we break the news that service in Mexico or India or Vietnam could take two years (<– that’s not a typo). But the line item in our engagements that causes the most surprise– and ire– is translation.

What do you mean it’s going to cost $45,000 to translate this? The defendants all speak English!

Well, two points are pertinent here.

  • For starters, you’re serving in Notamerica, where they don’t officially speak English, so they require translation into Notenglish. It’s not about the defendant— it’s about the foreign country’s requirements under Article 5(3) of the Hague Service Convention. And you’ve got three Notamerican defendants in three different Notamerican countries that require three different languages. To the tune of fifteen grand each.
  • Why fifteen grand each? Well, it comes down to the biggest reality lawyers face: we don’t get paid by the word. You have a 97-page complaint with 22 exhibits. It’s a pricy venture.

But do you know who does get paid by the word?

TRANSLATORS.

TRANSLATORS GET PAID BY THE WORD.

So now I give you my favorite line from Ocean’s Eleven — the Clooney/Pitt/Damon version rather than Sinatra/Martin/Lawford (but with a particular nod to my fellow Kansas Citian, Don Cheadle).

Don’t use seven words when four will do.

Seriously…

  • Think back to 1L legal writing class. Remember word limits?
  • Think back to the last appellate brief you filed. Remember page limits?
  • Think back to the old adage “sorry I couldn’t make this shorter– I didn’t have enough time.” Remember being told to make time?

Okay, page and word limits exist because law professors and judges already have enough to read, and woe is the 1L or veteran litigator who forgets that. But apply this to your firm’s pocketbook, and more particularly, to your client’s pocketbook. Verbosity is expensive. And when you need to serve a defendant in Notamerica, odds are pretty good that you’ll have to translate every word on every page that gets handed to the defendant. So a few tips to keep in mind:

Save your firm and your client a bunch by holding back. Seriously.

* Hint: it’s not easy. If it were, I wouldn’t have a practice.

A plea to the senior partner overseeing a lawsuit:

Stop throwing your junior people to the wolves.

Hear me out here. (This applies equally to non-attorney staff– the more junior they are, the more this is important.)

Litigators are busy people. I get it. You have 168 hours in a week and at least twelve of those need to be devoted to sleep. Especially in complex matters, it’s imperative to delegate different parts of the effort to the right members of the team.

  • “Susan (who just made partner), you’ll run the show on trial strategy & theme.”
  • “Dave (your fifth-year mentee), start thinking about how you’ll run discovery.”
  • “Kathy (your 14-year paralegal), you’re running all support staff functions.”
  • “Timmy (first-year associate who just passed the bar exam), go get these overseas defendants served.”

As if that last one is the simplest and least important part of the quest.

The basis for Timmy’s assignment surely must be the belief that service of process is a simple, straightforward procedure, so it’s not a risk to hand it to somebody who is bright but woefully inexperienced. But it’s a huge risk, and you’re setting the kid up for failure. Or frustration. Or your ire.

Timmy does a Google search for how to serve process in Notamerica, and he finds an august online publication called The Hague Law Blog. He peruses my country-specific post on Notamerica and calls me to ask for a price tag. It’s not that simple, I say. You have options, and that means a wide cost range. But Timmy isn’t privy to your grand strategy, and he lacks the authority to make any decisions, so he and I spend hours going back & forth about options, as he relays information from me to you and your questions back to me through him. He’s a go-between, because you just don’t have the time to deal with something so trivial as service of process.

You’re not only setting Timmy up for failure– you’re wasting your own time and mine because you won’t just pick up the phone and talk to me. We could have a strategy mapped out in fifteen minutes if we could chat directly. And your mind would be put at ease.

And speaking of wolves (just for fun), here’s a gratuitous reference to the glory of the 1980s.

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We aren’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination. If that ship is going between the Mediterranean Sea and the western hemisphere, odds are it sails by Gibraltar. This article is posted from atop The Rock itself (see above– no, really).

Serving process in Gibraltar is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  The tiny headland is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.*  A fair number of U.S. tourists spend time in Gibraltar (including your author), just a short drive from the resorts of Spain’s Costa del Sol. It’s also a tax haven and high-tech hub (read: e-Gaming and fintech), so a not-insignificant amount of U.S. litigation involves entities situated on its 2.3 square miles.**

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

Now, for the chase scene.  Here’s how service is effected in Gibraltar:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—possibly several weeks or months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

Pretty straightforward stuff in Gibraltar.  For more insight, the UK’s declarations and Central Authority information can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text.  If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States.  The methods described there aren’t even part of the agreement.

** Depends on who you ask. The local government says 2.25, other sources say 2.5 or 2.6… point is, it’s itty bitty. And much of the itty bitty is a vertical rock, so the occupied land is ittier bittier. And psychotically easy to get around.

Author’s note: this little headland was always a curiosity in my youth, and I’m finally visiting just shy of my 54th birthday. It was in the opening scene of the much-maligned (fairly or unfairly) Timothy Dalton debut as 007 in The Living Daylights. It was also the centerpiece of corporate branding for insurance giant Prudential. The company’s 1970s & 80s jingle was stuck in my head until I made the ill-fated decision in my twenties to sign on as a Prudential agent. I was terrible at prospecting, and failed miserably. But my short stint as a gravel salesman (little pieces of Rock… get it?) proved an amazing learning experience, and I’m still a Prudential client three decades later.

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Artem Beliaikin, Unsplash

A few years ago, I put up a brief post about a service of process story with a Kansas City connection– and nothing whatsoever to do with the Hague Service Convention. See, Jason Sudeikis (yes, he of Ted Lasso fame) is one of Kansas City’s favorite sons, so when his attorney served a custody action on Olivia Wilde during one of her public appearances, it made the local news here. The Twitterati naturally went berserk, accusing Sudeikis of being an ass (he’s not, and he wasn’t– I’ve met the guy’s parents, and they wouldn’t cotton to misbehavior). He and Wilde have since settled their dispute to the tune of about $30,000 a month, and by all accounts, their kids are doing well.

But another Kansas City service story dropped recently, and it stands in stark contrast to that in Sudeikis v. Wilde. In that case, I speculated that the process server had to get creative, and I thought that’s what this one had to do. But now we have the litigation between actors Blake Lively and Justin Baldoni (see here if you just have to know more), with a spill-over to the biggest celebrity news in KC right now: Travis and Tay-Tay.*

Seems that either Lively’s or Baldoni’s lawyers– I’m not sure which– needed to hit Taylor Swift with a deposition subpoena, so they hired a (less-than-reputable) ex-cop who hopped over Travis Kelce’s fence at 2 o’clock in the morning. Of course, 87’s security system kicked in, and within minutes the P.D. had the fellow cuffed in the back of a squad car. Turns out the police in Leawood (the tony suburb just across State Line Road from Kansas City, Missouri) are fans of the newly-engaged couple and are motivated to be there when needs must. To be sure, I’d wager there’s a whole lot of lookie-loos trying to catch a glimpse of the Hallbrook development’s most famous residents, so they probably cruise by a lot.

But here’s the thing… these two stories are dramatically different. The process server who placed a manila envelope at Olivia Wilde’s feet didn’t do anything unprofessional. She (yes, she) simly approached, told Wilde that she had something for her, and left it at that. Embarrassing? Sure. A bit of a surprise under not-so-happy circumstances? Of course.

But it didn’t involve criminal trespass and it didn’t require a galactic level of stupidity to even think one could pull it off.

You can give ’em books and you can give ’em books…

** The Chiefs are 6-6 as of this writing. We have to have something else to think about around here, so it may as well be a wedding.

Trucks in Brooklyn
Christian Lendl, Unsplash

At least two or three times a month, I’ll get a call or email that starts off like this:

“Hi, Aaron.  I need to serve two defendants in Mexico– an entity and an individual.  Can you help us out?”

First question out of my mouth (after saying “you betcha”):  Is it a trucking case?

“Yeah.  How’d you know?”

Simply put, it’s a textbook situation– truly the example I use when I explain to colleagues what my practice entails.  Since the advent of NAFTA in the 1990s (and its successor, USMCA* a few years ago), you’re just as likely to see trucks in south Texas from Chihuahua or Tamaulipas as you are from Maine or Oregon.  Given the sheer number of hours they spend on the highway (all hours, all day, every day), it’s only natural that big rigs are statistically more likely to be involved in collisions than the SUV sitting in my driveway.  It only stands to reason, then, that collisions involving Mexican trucks would prompt litigation involving Mexican carriers and their drivers.  So what is a plaintiff’s lawyer to do?  From a service perspective, it’s no different than any other personal injury suit— this just happens to be the specific type of case we see more than any other, especially with Canadian trucks.  The defendants are always the same: trucking company, individual driver, and sometimes their insurance carrier.

Fortunately, Canada offers options in how U.S. process can be served.  Mexico does not. In both cases, the Hague Service Convention governs, but the Convention operates differently up north than it does south of the border.  The only way to go is a Request pursuant to Article 5 of the Hague Service Convention, sent to Mexico’s Hague Central Authority. Whether you have us handle the whole thing, you use the Hague Envoy platform, or you do it all yourself.  There’s no other way to go about it because Mexico objects to Article 10 of the Convention.

That’s it. Fairly straightforward stuff– it just needs to be done the right way.

* For crying out loud, why didn’t they just call it NAFTA 2.0 ?

[Another “Big Tony” lesson here, for those of you who are familiar with him from prior posts. This has really become a more prevalent thing lately, and I have to address it.]

With pretty high frequency, we’ll determine on the eve of sending a Hague Service Request that our client (almost invariably plaintiff’s counsel) has listed an address in the summons that doesn’t jive with the address indicated in an entity defendant’s state registry. We always recommend going with the registered address because that’s what Big Tony, my BusOrg (called simply Corporations back in the day) professor in law school, told us to do.

That’s the entire point of a resident agent,* he said while describing Missouri’s statutes on corporations, LLC’s, LLP’s, etc., so don’t get cute– just serve the agent. (He was also the guy who insisted that litigators shouldn’t even bother to file if they couldn’t get the defendant’s name correct.)

Big Tony was then, and remains today, a prophet.

Eight times out of ten, counsel agrees with our recommendation and says “okay, go where the registry tells you to go.” Perhaps a tenth of the time, there’s some procedural reason to stick with the summons address, so we proceed cautiously, with the caveat that it might work or it might not.

But then there’s that last time out of ten, where our client directs us to stick with the address they have for some other reason. So we have to ask… where’d that address come from?

  • It’s the service address the defendant indicated in the contract. Well, okay, that’s plausible, we say. If service fails, you can point to that when the judge gets irritated that you have to tee up another long wait. Although… how old is the contract? Has the defendant been acquired or merged with someone else? And isn’t that the contract they allegedly breached? Lots of issues still remain. But you’re the boss.
  • It’s the address the defendant indicated in a responsive pleading in another case. Ibid. Caveat ibid.
  • That’s the address on the defendant’s website. Um, no. Just… no.
  • The company’s SEC Form F-4 says so. Or its SAFER Company Snapshot. So, you’re relying on self-reporting?
  • That’s where opposing counsel told us we should go. Whoa– tap the brakes, there, pal.

The last three set my teeth on edge. Hear me out.

That’s the address on the defendant’s website.

So what?! That could just be a customer service office. It could just be the street address of the company’s loading dock, while the hive mind is housed around the corner. Sure, if they expressly say it’s their headquarters, perhaps, but even that is tenuous. Who do you go to at the HQ? Hand everything to to Timmy the Mailroom Clerk? Force your way past security to reach the CLO? Yes, state rules may give you the option of headquarters or registry, but why bother with a maybe when a sure thing is right in front of you?

Bear in mind that websites are marketing devices, nothing more. They are not expressions of hard & fast legal reality (think puffery from Contracts when you were a 1L). How many websites out there can’t even get the entity’s legal name correct, much less the entity’s legal address? Hint: LOTS. Because the kids in the marketing shop don’t run things by legal before they post.

Best example: you don’t serve General Motors at the Renaissance Center in downtown Detroit. You don’t serve Ford at the River Rouge complex out in Dearborn. You serve them at their respective registered agents’ offices in Wilmington, Delaware. Why? Because they can’t weasel out of service there. That’s the whole point of having a registered/resident agent.*

Or how about Stellantis, the big multinational that came about when Peugeot bought out Fiat-Chrysler? If Stellantis is a defendant, you definitely don’t serve them via Chrysler (technically now Stellantis North America) in Auburn Hills– another Detroit suburb. You serve Stellantis N.V. at its registered address in Hoofddorp, Netherlands.**

That’s what the defendant listed in its U.S. government filings.

Okay, fair enough, but who completed the filings? Did they indicate the compliance officer’s address, or general counsel, or the CEO’s office? It’s not a 100% reliable indication. To be sure, if we can’t even find a registry in Notamerica,*** this is unquestionably the best source we have, but if the Notamerica corporate registry conflicts with the U.S. government filings, which one is more authoritative under Notamerica law?

That’s where opposing counsel told us we should go.

Oh, where to begin…

Look, I get it. You want to trust a colleague and play nicely in the sandbox. Strive mightily, but eat and drink as friends… I’ve been incredibly blessed to have adversaries I respect, admire, and work (and eat and drink) well with.

But if opposing counsel were so forthcoming with correct (or at least, not misleading) information, why wouldn’t s/he simply file an appearance and get on with it? More to the point, if the defendant were that forthcoming with its counsel, why wouldn’t they simply waive? You wouldn’t need Viking Advocates to sail out into Notamerica to plunder. You wouldn’t need to hand us a four- or five-figure check (occasionally, six!) to go out and get those defendants served.

Wrapping it all up.

So back to Big Tony. Not your typical law professor, Tony had been to the wars. After thirty years in corporate litigation, he had an opportunity to teach would-be lawyers the lessons he’d learned over the decades. Chief among the lessons: pay attention to who the defendant is, and make sure you tag them in the right place. For the record, neither of my Civ Pro professors ever even mentioned service of process (and I chided them for it in a CLE lecture one fall morning in a Paris conference room)… but Big Tony did.

He was emphatic about getting it right the first time. So if you’re presented with (1) an authoritative official source and (2) a plausible-but-unofficial source, your best approach is to go with Door #1.

* Important to note is that registered agents just aren’t a thing in most of the world. Outside North America and the Caribbean, entities usually just have registered addresses.

** By coincidence, Stellantis’ Hoofddorp headquarters is its registered address, so nothing to quibble about. You just can’t hit them in Michigan.

*** That doesn’t mean the entity doesn’t exist. Many countries don’t even have a registry, Mexico being our biggest problem child. It just means we have no choice but to rely on the U.S. government source.

Ever feel nostalgic looking at this?
kiryl, Unsplash

[Yes, this story is relevant to litigation. I promise.]

Between us, Peggy and I have four nephews– three by biology and another by circumstance of life. All four of them are on the verge of adulthood, and all four played a lot of Minecraft when they were on the verge of adolescence. I mean a LOT of Minecraft. No, really– we’re talking freaky amounts of time playing this game that only makes me want to go lay down so my head will stop spinning.

I didn’t realize just how deep they were into the abyss until I noticed one of them watching YouTube videos of OTHER KIDS playing Minecraft.

“Hey, whatcha watchin’?”

Minecraft.

“I thought that was something you played. Y’know, like Atari?” *

Go away, old man.

“So… you’re watching Minecraft instead of playing Minecraft?”

Yes. Go away.

“You’re watching some other dweeb play the game that you yourself play.”

Yes. Go away.

[What can I say? He was surly at 12. And a dweeb. He’s still a tad surly at 20, but I’m proud of the man that he’s become, regardless.]

“I don’t get it, D. Why would you watch some other… forget it.” As I walked away, shaking my head.

You know a video game is addictive when a kid watches somebody else play it. For hours.

Now into court comes a parade of parents, suing the makers of various video game platforms for failure to warn them of the dangers posed by the likes of Minecraft, Fortnite, Roblox… all far more sophisticated and intricate than anything we could have imagined back in 1980 when they told us that Pac Man would rot our brains by 1982.

It’s the sophistication than puts parents at a disadvantage; the games are designed like Vegas casinos. No clocks, no natural light, no sense of the passage of time, all so the player stays in it. There’s a reason we don’t let seventh-graders play slots. And yet…

So who came up with Minecraft? An outfit called Mojang Studios, now a Microsoft subsidiary and Microsoft’s co-defendant in dozens (if not hundreds) of suits nationwide. If it’s going to be sued, it’s also going to have to be served, and that’s where the Hague Service Convention meets Jason Momoa.

See, Mojang AB (Aktiebolag) is a Swedish company, parked in a lovely little three-story building facing a sinister cliff face in Stockholm (this is the cliff— and now it all makes sense). Sue Mojang in Tampa or Omaha or Denver, you still have to serve it in Stockholm. See here for a rundown on how to do that.

Or just look up at the upper right hand corner of this screen (scroll all the way down if you’re on a phone) and tap us on the shoulder.

* In case there was doubt, I am Atari 2600 Old. And I was an ace at River Raid.

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Robert Anasch, Unsplash

All of our clients are lawyers, so we don’t hear this quip often. But when we do, it sets my teeth on edge just a bit, because the guy* on the other end of the line is either being extraordinarily rude, or– more likely– he just doesn’t have a solid grasp of what we do and of what’s involved when serving abroad. I always strive mightily to presume the latter.

Lawyers understand that rates are set at a certain level for a reason. A high-degree of specialized knowledge, the particular rarity of of that specialized knowledge among the practicing bar, expert tutelage, and years of experience… all go together to justify an attorney’s hourly rate or, if we’re focused on an outcome rather than time invested, an attorney’s flat rate.

Last fall, I published a post entitled Focus on value– don’t just go for the low bidder when serving overseas defendants. This is rather a sequel to that, with an illustration.

Not long after that post went live, a colleague from Notkansascity rang me up and said, “hey, Aaron, I have a few companies I need to serve in Notamerica.** Can you help me out?”

Of course, I said. Tell me a little bit about the defendants and the case.

We discussed the causes of action and the forum, and I brought him up to speed on the applicable doctrine both here and in Notamerica. Local requirements, the Hague Service Convention, and foreign law… by the end of the discussion he had a good grasp on the rulebook involved.

Turns out it was one of those situations where the defendants are all part of the same corporate family and use twelve different names on their websites and not a single one of them is accurate. No problem, though, as the Republic of Notamerica has a pretty robust corporate registry, not unlike what our Secretaries of State provide here in the U.S. (I sensed a whole lot of “a/k/a” designations coming). Within about ten minutes of searching, I concluded that he’d listed in his complaint more defendants than actually exist; most of them were just trade names or variations on actual entity names, conjured up by some overzealous marketing major who didn’t take BusOrg with Big Tony.

Together we reduced the list to a manageable– and realistic– number, and he asked me to work up an engagement. Ten minutes after I sent it to him, I get a snarky message back. “Wow. X-thousand dollars just to deliver some extra copies? That seems kinda steep.”

He had to have been thinking in terms of his local process server. I’d just spent an hour helping him whittle down a problem that would have cost him ten hours to clean up on the back end. But what process server has the legal acumen to do that?

Except that’s precisely what we do here– we don’t just salute and do what we’re told without saying, “hang on a tick– there’s a better way to approach this situation.” We have two goals in mind for everything we do: (1) protect our fellow lawyers, and (2) make us all better at the practice of law. In short, our mission is to help other lawyers do what they do, better (cue BASF commercial from the 90s). We’re in the business of telling our colleagues where the landmines are buried. We’re in the business of saving bacon. Seriously.

But this guy had reduced what we do to delivering paper. That’s all. Not advising him on the minefield he was about to saunter into. Not preventing the embarrassment certain to befall him when the judge benchslaps him for not doing his homework. He perceived us as a courier service and nothing more– which is even a jab at his local process server.

That begs the question: if all you need is somebody to deliver a stack of paperwork, why don’t you just call FedEx or UberEats or Drizzly? [Easy answer there. Because they don’t know the rules surrounding proper procedure.]

Serving process domestically is a challenging business, and you don’t want to leave it to some schmoe who doesn’t have a clue about applicable rules or about the peculiar things process servers face when they’re out and about. To be sure, I know some awesome process servers and I know some schmoes, and if I were running a lawsuit, I know which ones I wouldn’t hire. They need to do more than simply deliver things.***

Now extrapolate that to Notamerica, where they may or may not even have process servers in the first place (seriously– they don’t exist outside common law systems, and not even everywhere in the common law community). Serving process abroad is significantly more challenging than service here at home, simply because things work differently over there.

Landmines are buried everywhere in the overseas service arena. Some fields are sparsely laden (and thus not difficult to navigate safely), while others are chock-full of incendiaries that can derail a cause of action entirely.

We don’t just deliver paperwork. We navigate through those minefields.

A LOWER-COST ALTERNATIVE…

It may very well be that a litigant simply lacks sufficient resources for his/her lawyer to hire us. I get it, believe me, I get it. So I’m always keen to suggest a lower-cost approach that will help lawyers draft and file their own Hague Service Requests. It’s called Hague Envoy, and it compares to my firm like TurboTax compares to a CPA. Nobody needs to do it alone when there’s software to lend a hand.

* It’s always a guy. Seriously. Women in the legal field are just more respectful and, usually more thoughtful. This assertion is not an absolute, but it’s a rebuttable presumption.

** Tip for non-Geography majors: Notkansascity and Notamerica are fictional places, sort of like those silly jurisdictions like “Erehwon” that they came up with in Moot Court.

*** This is not a slam on the millions of people who deliver our mail, our Amazon packages, our pizza (shout-out to my guys at Minsky’s!)… but it is an argument that process servers must know and do and document a whole lot more.

No, really. It’s gamesmanship, it’s wrong, and it’s prejudicing your client. Think Charlie Brown and Lucy and that blasted football.

If defense counsel were going to accept service on their client’s behalf, they’d have done it already, so quit screwing around and recognize that time’s a-wastin’. Quit letting them pull the ball away at the last moment and send you flat on your back.

The biggest frustration my litigator clients face is the excruciatingly long wait that follows submission of a Hague Service Request to certain foreign authorities. We’re talking two years (<– not a typo) in many places, like India or Mexico. Plaintiffs pull their hair out in exasperation because, well, it just shouldn’t take this long. Judges and clerks are naturally irritated when the docket isn’t moving the way it should. All of these irritations are understandable. And they’re unavoidable.

Yet what is avoidable? Several things come to mind– all down to opposing counsel’s shenanigans:

(1) Silly delays brought on by opposing counsel’s foot-dragging.

Oh, gee. Let me see if my client will authorize me to accept and I’ll get back to you.

And then… crickets.

I regularly hear from prospective clients weeks or months after I’ve closed a file, saying “yeah, they said they were going to appear and still haven’t, so I guess we have to start the Hague process.” Perhaps two thirds of the projects we start and then pause are re-started again after a month or two.

Quit letting them jerk you around, gang. For starters, send the defendant a Rule 4(d) waiver request– yes, to the defendants and not their lawyers, although a courtesy copy can’t hurt– because that’s what Rule 4(d) directs you to do. Make very clear that, if they don’t waive, you will move for fee shifting to recoup the several thousand dollars spent to serve them. If they don’t get back to you in a month, you pretty much know where you stand.

If defense counsel promises to waive, ask them when specifically. If they don’t do it within a week, you pretty much know where you stand. When are you going to enter your appearance?

“I don’t know yet…” really means “I’m not going to but I want to stretch this timeline out as much as possible.”

They’re just jacking with you. Seriously, it’s a delay tactic. It may be counsel playing games, it may be that his/her client is just devious… either way, delay benefits them, not you or your client.

(2) OC gives you a service address that turns out to be bogus according to the foreign country’s registry.

If they’re that dependable or trustworthy, why in the hell don’t they just waive and save everybody but my stockbroker some trouble? I’ve actually had clients direct me to request service at an address provided by opposing counsel, despite clear indication in the defendant’s corporate registry that it should be served elsewhere. And they’re surprised a year later when the Hague Request fails.

At that point, plaintiff’s counsel cannot honestly tell the court that we don’t know the defendant’s address (in which case the Hague Service Convention doesn’t apply), but he does have to honestly tell the court that we have to tee this thing up again and waste another year waiting.

(3) OC purports to have authority to accept but actually doesn’t.

Yes, this actually happened once. Plaintiff filed suit, defense counsel told plaintiff’s counsel that he would accept on various individual defendants’ behalf. Plaintiff served him. He appeared. All seemed to be going well.

And then the defendants claimed he never had their authority to accept service or represent them in the first place. Not a good day for that lawyer.

And the plaintiff still had to pursue Hague Service.

Wrapping it all up.

I still hold to the Shakespearean maxim about adversaries in law: strive mightily, then eat and drink as friends. When I know that the party across the table is represented by a colleague that I know and trust, my job is actually easier. But trust in that colleague only goes so far; I still have to represent my client to the best of my ability, and that ability requires a little skepticism at times.

Unless you have some certainty that OC is an honest broker who has the defendant’s authority to play nice in the sandbox, don’t buy it. Or at least, don’t buy it for long.

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Ksenia Yakovleva, Unsplash

Three years ago I posted “Modify State Court Summons Deadlines. Just do it.” to equip my clients (all lawyers) with the necessary ammunition for an argument with their clerks of court when summonses are to be served abroad. Essentially, I laid out the logic that, if a summons contains language that makes it expire within X days after issuance, that expiry language must be removed, lest it (1) cause a service request to be rejected by a foreign Hague authority or (2) automatically moot the summons prior to service by that authority. Maryland is my big problem child in that regard. Illinois and Connecticut are more than a bit quirky.

Enter our friends in Michigan.

The Mitten State. The Great Lake State. The Motor State. The We-Deserve-a-Super-Bowl-Win State (they really do). The state where a summons expires by rule 91 days after it’s issued.

The language of the summons itself, Form MC 01, isn’t problematic and needs no modification. It contains nothing like the self-immolating text found in most Illinois and all Maryland summonses. (I’m still looking at you, Crabcakes. Seriously, get your act together.)

But while Mich. R. Civ. P. 2.102(D) is very clear, it presents a challenge to parties looking overseas to tag their opponents. In whole:

(D) Expiration. A summons expires 91 days after the date the summons is issued. However, within those 91 days, on a showing of due diligence by the plaintiff in attempting to serve the original summons, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the summons is issued. If such an extension is granted, the new summons expires at the end of the extended period. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses issued under subrule (A) do not extend the life of the original summons. The running of the 91-day period is tolled while a motion challenging the sufficiency of the summons or of the service of the summons is pending.

This is a huge problem when the summons is directed at a defendant abroad, because the odds that it will be served by the 91st day are slim in some places and precisely nil in most of the world. And you can’t simply get an extension on the original summons once it’s already been sent to a Hague Central Authority in Notamerica.* You must ask the judge to issue a second summons, extended out for a year, and then you have to start your Hague Request all over again.

So what should you do to negate the need for a second Hague Service Convention Request, and all the costs that entails?

Simple. Get the first summons on Monday, throw it in your digital wastebasket, then ask for a second one on Tuesday.** The judge is naturally going to look at you like you’re nuts, but explain that, gee, your honor. Aaron says things don’t work over there the same way they work here.***

Expected timelines around the world run from blazingly fast– Ticino, the Italian-speaking canton in Switzerland, once got a proof back to me in three weeks– to glacially slow, India and Mexico being the worst by far. They often take two years (that’s not a typo). But even in faster destinations like Switzerland and parts of Germany, delays still happen, and they’re completely outside your control. In order to ensure your client’s access to justice and promote judicial economy, relate to the judge the expectation that the 91-day limit is all but certain to be blown. That means you’ll be back to ask for another summons anyway down the road.

Way down the road.

* Tip for non-Geography majors: Notamerica is a fictional place, sort of like those silly jurisdictions like “Erehwon” that they came up with in Moot Court. My friends in the immigration bar fight having their clients sent there.

** While you’re at it, pull the second page of the MC 01 — for the same reason you should pull page 2 of a federal AO440 summons. It’s not the appropriate proof.

*** Cite me as an authority at your own peril. Then again, if your judge has a sense of humor show him/her this post. If he/she is grumpy, keep me out of it.