Tues., Sept. 10

service

service when defendant is an individual

4(c) Service. … (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

- Is an employee of a corporate plaintiff a “party” for the purposes of 4(c)? - The plaintiff’s lawyer?

4(e) Serving an Individual Within a Judicial District of the United States.  Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or…

If you must rely on state law for how to serve, do you also have to satisfy state law on who may serve, or is 4(c)(2) controlling?

(2) doing any of the following:     (A) delivering a copy of the summons and of the complaint to the individual personally;     (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or     (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

What is a dwelling or usual place of abode What is a dwelling or usual place of abode? Who is someone of suitable age and discretion?

What does it mean to deliver “personally”?

- Defendant is aware that he is being served but will not take them - Process server lets them fall at the Defendant’s feet - Server returns a little while later to find that the papers are gone.

Novak v. World Bank, 703 F.2d 1305, 1310 n. 14 (D.C. Cir. 1983)

- Defendant is aware that he is being served but will not answer door - Process server lets them fall at the doorstep - Server returns a little while later to find that the papers are gone

Williams v. Harris, 1988 WL 78849 (D.D.C. 1988)

5) P files an action against D in the E. D. Va 5) P files an action against D in the E.D. Va. for violation of federal law. P serves D in accordance with Fed. R. Civ. P. 4 - D files a counterclaim against P and serves P by mailing a copy of the counterclaim to P’s attorney - P appears in the E.D. Va. and makes a motion to dismiss the counterclaim for insufficiency of service of process. What result?

serving corporations or unincorporated associations

(h) Serving a Corporation, Partnership, or Association (h) Serving a Corporation, Partnership, or Association. …must be served: (1) in a judicial district of the United States:     (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or     (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of each to the defendant...

1) P files an action against the D Corp. in the E. D. Va 1) P files an action against the D Corp. in the E.D. Va. for violation of federal law. - P serves the D Corp. by having a process server leave a copy of the summons and complaint with a foreman at a D. Corp. plant in Pa. - The D. Corp. appears in the E.D. Va. and makes a motion to dismiss the complaint for insufficiency of service of process. What result?

2) P files an action against the D Corp. in the E. D. Va 2) P files an action against the D Corp. in the E.D. Va. for violation of federal law. P serves D by having his lawyer leave a copy of the summons and complaint leaves at house of the CEO of the D. Corp. in Pennsylvania with his 18 year old son - The D. Corp. specially appears in the E.D. Va. and makes a motion to dismiss the complaint for insufficiency of service of process. - What result?

constitutional restrictions on service

U. S. Const. Amendment V. No person shall U.S. Const. Amendment V. No person shall . . . be deprived of life, liberty, or property, without due process of law . . .  Amendment XIV. Section 1.  . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Mennonite Board of Missions v. Adams (U.S. 1983)

Mullane v. Central Hanover Bank & Trust Co. (U.S. 1950)

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

federal subject matter jurisdiction

federal question (or “arising under”) jurisdiction

U. S. Const. Article III. Section. 2 U.S. Const. Article III.  Section. 2.  The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…

28 U.S.C. §  1331. - Federal question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.   

Louisville & Nashville RR Co. v. Mottley (US 1908)

- P sues D in federal court. - D appears - P sues D in federal court. - D appears. - There is in fact no federal SMJ, but no one notices. - P gets a judgment of $100,000 in his favor; there is no appeal. - P then sues on the judgment in state court to garnish D’s wages. - D collaterally attacks the judgment for lack of SMJ.