Magistrate Judge Hall recently issued an R&R examining timeliness of service of process on foreign defendants via the Hague Convention. Both moved to dismiss.
Although Judge Hall denied the motion, the timeliness discussion is worth noting. Often service on foreign defendants can be unwieldy and time-consuming, and this ruling is an important reminder of the importance of keeping that process moving even while negotiating waiver or other substitutes for Hague service.
Judge Hall issued the R&R in two actions, Wildcat Licensing WI LLC v. Audi AG, C.A. No. 19-833-MN-JLH and Wildcat Licensing WI LLC v. BMW AG, C.A. No. 19-834-MN-JLH. Both defendants had moved to dismiss under FRCP 12(b)(5) on the grounds that service was untimely.
Although the plaintiff began preparations to serve under the Hague not long after the complaints were filed, it did not move for the issuance of letters rogatory until about five months later. And, due to some delays in submitting properly translated documents, plaintiff did not successfully serve the defendants until more than a year after the complaints were filed.
Judge Hall noted that while FRCP 4(m)'s requirement that the complaint be served within 90 days of filing does not apply to foreign defendants, other Circuits have held that the time to serve foreign defendants is "not unlimited," and that judges have discretion to dismiss if the Hague process is not started until more than 90 days after filing.
Ultimately, however, Judge Hall saw little practical reason to exercise her discretion to recommend dismissal, given that any dismissal would be without prejudice and would burden both the District court and the German Central Authority.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
