An axiom of life was posed to me one day toward the end of my 2L year:
Lawyers are the most helpless race of people on the planet.
This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience in military and civilian courts. “Seriously,” he said. “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”
After I started practicing, I concluded that he was right– at least, to a point. But it’s not that lawyers are incapable of dealing with picayune matters. We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice. Part of the difficulty in dealing with the seemingly small stuff is this: we have so much voluminous reading to do that we forget one of the Cardinal Rules of law school: keep reading.
One of the issues that is a constant in my world is the deadline set forth in Fed. R. Civ. P. 4(m)., seemingly a buzzsaw when plaintiffs’ counsel has to serve pursuant to the Hague Service Convention– especially when the defendant is in a place like Mexico or India. Just last week, I told a client that the Hague Central Authority in China might take 18 months or more to get back to us, and he said the judge’s head was going to explode at that. She wanted everybody served in 90 days or she was going to kick the whole case out of court.
Well, I said, her head’s just going to have to explode, because she doesn’t have the authority to do that.* Let’s take a look at the rule.
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.
Okay, I see where she’s getting the deadline. But it never ceases to amaze me how many lawyers– including, to my dismay, the ones who wear robes and bang little wooden hammers on their desks for a living– simply stop reading there, and completely miss the next sentence.
But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Hey, that seems like a good thing, right? What better cause can there be but a procedure mandated by a treaty?
Ahem, good cause doesn’t matter. There’s nothing to extend if service happens abroad, so don’t ask. (Keep. Reading.)
Most frustrating to me is that they don’t get to the last sentence of 4(m), which solves everybody’s problem (okay, maybe not the person in the robe with the little wooden hammer– but she has to relent a bit).
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).
Emphasis mine, of course. (When we serve abroad, we’re almost always using 4(f).)
If counsel or the judge simply keeps reading, the safe harbor is obvious. You really do have a friend in 4(m), but that friend only shows up in the full text of the rule.
Keep reading.
* Seminal: Nylok Corp. v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005).