In a couple of recent cases of the day (Tuckerbrook v. Banerjee and Davoyan v. Turkey), plaintiffs who had reason to question whether their efforts to effect service of process had been successful asked the court, after the fact but before the defendant had answered, to approve the service. In Tuckerbrook, the plaintiff asked the court to “deem” service effected; in Davoyan the plaintiffs asked the court to “validate” the service. In both cases, the motions came before the time for the defendant to raise the defense had passed. What’s going on here?
Insufficient service of process is an affirmative defense, which, under Rule 12(h), the defendant must raise in his answer or his first motion under Rule 12(b). As the Tuckerbrook case shows, defendants can waive the defense even where it apparently has merit. If I were a judge, I would not be inclined to rule on the merits of an affirmative defense that the defendant has not raised and may never raise.
In both Tuckerbrook and Davoyan, the plaintiffs sought the court’s approval of their method of serving process without exhausting obviously available methods of service. In Tuckerbrook, it appears that the plaintiff requested the Indian central authority to make service under the Hague Service Convention but did not wait for the central authority to act before seeking to make service by other means. In Davoyan, the plaintiffs did not seek to use means expressly authorized by the Foreign Sovereign Immunities Act. In Davoyan the court rejected the motion outright. In Tuckerbrook the court initially granted the motion only to realize later that service of process had not been validly effected; the plaintiff prevailed on the issue only because the defendant waived it in his Rule 12(b) motion. I wonder whether the time and money spent on these motions was justified by the plaintiffs’ unhappiness with the more time-consuming but also surer means of service available to them.
No doubt foreign central authorities could in some cases work faster; and the diplomatic channels available for service under the FSIA could also be quicker and less expensive. But in general, it seems to me that motions seeking post facto validation of potentially problematic service of process are not a great idea.