This episode is a tutorial lecture about Service of Process under Federal Rule, and the 12(b)(4) and 12(b)(5) motions to dismiss. The episode focuses on a practical application of these Rules.
This episode is a tutorial lecture about Service of Process under Federal Rule, and the 12(b)(4) and 12(b)(5) motions to dismiss. The episode focuses on a practical application of these Rules.
Welcome, um, the civil procedure podcast. I am your host Thomas Mayne. And this episode is about notice and service defendants are entitled to some form of notice some four month notification that they've been sued. That seems like a rather fundamental concept of justice that you need to know that your rights and responsibilities are being adjudicated. Of course, plaintiffs know that their rights and responsibilities are being adjudicated because plaintiffs filed the lawsuit, but defendants need to be notified somehow. And we call that notification service. So notice is achieved through service further. For historical reasons, we call it service of process process in term refers to something called a summons, which orders or summons the defendant to do something. And the something is to respond to the proceeding, understand that if we just served defendants with only a copy of the complaint, well, it wouldn't be obvious to the uninitiated what they are supposed to do with this legal document. So as summons on the other hand tells the defendant you've been sued in this court on this date, by this plaintiff, and you are hereby ordered to appear and to respond by such and such date. So there are four terms already that we're working with here, and these terms are intertwined. The terms that I've used, our notice service process and summons, to some extent, these words are interchangeable and you need not get bogged down. But if I were trying to create some separation here, I would say that process is the summons. Plus the complaint service of process is governed by rule four and notice is the objective. So process is the summons. Plus the complaint service of process is governed by procedural rule and notice as the objective. So the rule that we're talking about in federal court is federal rule four and failure to comply with federal rule. Four can result in dismissals pursuant to 12 B four and B five for insufficient process and insufficient service of process respectively. So failure to comply with rule four is a basis for dismissal. I encourage you to think of federal rule four as providing the technical details for initiating a lawsuit, because that's what it is. There are a bunch of trivial details in the rule about how this process is going to work, but you should also think of rule four as an important ritual because there is something profound lurking in those trivial details. The formal apparatus of the courts and all of its jurisdictional authority are officially engaged. And the gravity and solemnity of the court's actions are being telegraphed to the defendant. I'm going to divide this lecture about notice into four parts, and these are the four steps that I would encourage you to follow through in practice or on an exam, except to the extent that my fourth step should be your first step. So the four parts of my lecture are number one 12 before number two 12,[inaudible] number three, the constitutional check and number four waiver. I want to introduce them to you in that order, but waiver is something that you would want to check first in practice, because I wouldn't want you wasting your time going through the other three steps only to then as step four, ask whether it had been waived when there is waiver. We don't have to worry about these other three steps. First with a 12 B for a defendant can get an action dismissed for insufficient process. As a practical matter. What you're looking for here is some facial defect, some problem with the form of the process, and that is in distinction to some problem with the manner or method of serving that process. So by facial defect, what I mean is that there is some problem with process even before somebody left the building with it. So this isn't about the method or manner of service. This is about some facial defect with the papers themselves more specifically, you'll see in federal rule for a, a long list of things that a summons must contain. If a summons doesn't bear the seal of the court, then it's facially defective. If a summons doesn't specify the time within which the defendant must appear and defend it's facially defective. If a summons doesn't alert the defendant that her failure to appear timely will result in a default judgment. It's facially defective. I'm just working through the list of things in federal rule four a that a summons must contain this exercise is pretty simple. You're just running through a checklist to make sure that the things that a summons must contain in fact are included in the summons at issue. And that's it for the first part, very simple, let's move along to the second part of this episode then, which is the 12, B five with a 12 B five, a defendant can get an action dismissed for insufficient service of process. What you're looking for here is some defect in the manner or the method of service. More specifically, you'll see, in each of federal rule four E through four J the prescriptions for serving process on six different types of defendants individuals who were in the U S individuals who are not in the us miners corporations, the U S government, other governments, depending on the type of defendant, you need to follow the prescribed procedure that is outlined in paragraph four E through four J of that rule. So on an exam or in practice, you need to make sure you're in the right sub paragraph of the rule, depending on the situation that you're in, I'm going to go through only two of those six different types of defendants in this lecture. These are the most common two, but they're also illustrative of the basic process of read the rule, follow the rule. The first of the two that you're most likely to encounter are competent adult individuals who are in the United States. And then after we tackle that we'll tackle corporations and similar entities. So let's focus then on service on individuals under federal rule four E there are two basic paths set forth in the rule path. One incorporates by reference all of the methods of service available under the state law of the forum state, and also all of the methods of service that are available under the state law of the state, where service could be made. That means under this first path, if we are in a federal court in California, and one of the named defendants is an individual in Florida, we can serve that defendant through any of the techniques that are allowed in California state courts or any of the techniques that are allowed in Florida state courts. So if either of those state laws allow service by say, FedEx, well then for E one would be satisfied if we served that Floridian by FedEx for E one of the federal rules is just incorporating state procedures by reference whatever they are. They could be serviced by regular mail by email, by stapling it to the front door of the defendant's house. The idea in this first path, this four E one prescription is incorporating the state rules of the forum state, and also the state rules where service would be made path two as an alternative to following the incorporated by reference state procedures. Instead, someone serving an individual can do sub a sub B or sub C of this paragraph. Number two in the rule sub bay is delivering it to the person personally in their hands, or at least touch them with it, even if they won't grab it and then drop it at their feet. If you do this, that individual has been properly served under four E to a full stop sub paragraph two B authorizes service upon an individual by leaving it at the defendant's dwelling or usual place of abode with someone of suitable age and discretion who resides there, appreciate that this sub paragraph two B has three separate requirements embedded in there. You've got to leave it at the person's home, not their place of work. For example, that's one. And the second is you've got to leave it with someone of suitable age and discretion. So what about children, or what if the person with whom you leave it is drunk, naked, and hanging from a chandelier. And then the third requirement in sub paragraph to be is that that person with whom you're leaving the process has to reside there, not the visiting gardener, not the babysitter, not a visiting family member. It must be someone who lives there. Now, if you're thinking up hypothetical's, as I hope you are, you're probably thinking of all sorts of interesting factual situations like, well, what about homeless people? What about hotels? What about doorman in condos? You're right. That there are some tricky cases at the margins with which courts struggle. And to be honest with you, they even deviate a little bit, but of course we can never count on the courts to deviate from the black letter of the rule. And in any event you want to know every rule better than your adversaries. Know it, a third method for serving an individual is authorized by sub paragraph E two C, which is delivering the process to an agent of the defendant, do not overuse this. The agent must be someone who is authorized by appointment or by law authorized specific Calais to receive service of process on behalf of the individual defendant. So you can't just say that the person's accountant is an agent or the person's secretary as an agent or the person's employee as an agent, not even your attorney, is your agent absent some factual basis for believing that an appointment of that type has actually taken place. What you're looking for here in this EDC is some sort of a provision in a contract somewhere. That's what you're most likely to see where a provision in a contract could authorize appointment of an agent for purposes of receiving service of process. So individuals who are not minors or incompetent persons is one of the six prescriptions that you're most likely to use here in rule four. The second one that I want to focus on here is four H which prescribes service upon domestic or foreign corporations, partnerships, and other unincorporated associations that otherwise have the capacity to be sued with respect to the capacity to Sue. Let's give a shout out to federal rule 17 B. So let's address service upon those unincorporated associations that have the capacity to be sued as well as corporations and partnerships and limited liability companies and the like that are contemplated under federal rule four H now four H covers both foreign and domestic entities. And I'm only going to talk here about domestic American entities. Again, you've got two paths outlined in the rule, the first path for H one a again, inquiry parades by reference all of the methods of service available under state law of the forum state, and also all of the methods of service available under state law of the state, where service would be made. So if we're in a federal court in California, and one of the named defendants is a corporation or an LLC, or a partnership or some other similar entity in Florida, we can serve that defendant through any of the techniques that are allowed in California state courts for service upon corporations or LLCs, et cetera, or any of the techniques that are allowed in Florida state courts for those entities. So if either of those states say allow service by FedEx for H one a would be satisfied. If we used FedEx to serve that defendant four H one a is just incorporating state procedures by reference, incorporating them, whatever they are. The second path for suing these domestic corporations, partnerships and associations for H one B splinters further into a couple of sub-strands here. One of these sub-strands matches what we saw with service upon individuals. If a company has appointed an agent for purposes of service of process, then service upon that agent will suffice. No sir prize there. You can see why you might want to put into a contract. If someone has appointed an agent for purposes of service of process, then four H one B allows us to serve that defendant by serving their appointed agent, but four H one B also contemplates service upon an officer or service upon a managing or general agent of the organization. You might think of this second substrate, and then under four H one B, you might think of this as the corporate analog to leaving service at an individual's dwelling with someone of suitable age and discretion who resides there. The important thing to remember here is that it's not just an employee of the corporation or organization wrong. It's not an employee, that's not on the list. The list here says, officer managing agent general agent and other agent, but it does not say employee of the drafters of the rules had to be quite vague here, because you might imagine the many different types of entities that could be sued, labor unions, LLC, seas, sports teams, charities, partnerships, consortium's churches. Well, who, and what is an officer or an agent of those entities? Well, that's going to be subject to some interpretation and it's going to vary in different contexts. Here's the bottom line. If you serve the chief executive officer, you're in good shape. If you serve someone who is merely an employee, you're out of luck. So those would be our extremes. If you serve the assistant treasurer, you're in limbo, want to avoid legal research into that and the associated indigestion we'll, then don't use four H one B use one of the more definite methods of procedure allowed by state law that are incorporated by reference into the federal rule at 4 8 1 a, I wanted to cover four topics in this lecture, and we've already covered two namely 12 before and 12 B five. Let's talk about the constitution and some other profundity. Now the constitution is relevant to serve us because service is about notice and notice. And the right to be heard is one of the foundational prerequisites of procedural due process. Notice you have a right to know that your rights and responsibilities are being adjudicated. Whether you think of this as constitutionally mandated or just as good policy, there are other things about notice and service that are worth thinking about one of those, those things is the ability of the notice to get the recipient attention. If you received process from a Knight, riding a white horse, you're not likely to overlook the fact that you've been served, but if you receive process in a regular mail envelope, that looks like your other junk mail, you might toss it in the recycling bin without even opening, appreciate the tension between wanting to make service inexpensive and easy think email mail, snail mail, fewer formalities, but there's tension between wanting to make service inexpensive and easy with the need to make sure that recipients appreciate the seriousness and solemnity that a judicial summit deserves another matter or worth thinking about is how informative or helpful the contents of the process. In fact are, again, the extremes can illustrate an important tension here in a hypothetical universe. The process that a defendant receives would be translated into her native language and its legal contents would be understandable even to a lay person. The contents of the package would describe the full range of options for responding to the summons and the complaint. And the contents would outline paths for assistance that the defendant could pursue. It would be super helpful at the other extreme. The process could just include a copy of the complaint, filed with the court and no explanation at all of what the court's expectations were or what the recipients options were with that in mind revisit the formal requirements of a summons under federal rule for a, to see something in between those two extremes, the constitutional requirements for notice are in the background of federal rule for much as minimum contacts and the fairness factors fair play and substantial justice are in the background of long-arm statutes with respect to the doctrine of personal jurisdiction, yet mercifully for law students in the context of service, these constitutional requirements have far, far less interference and relevance, but there is some background for us to worry about here, and you will want this constitutional check at the bottom of your checklist when you're tackling a service question on an exam or in practice, the standard for notice under the constitution is that the notice must be reasonably calculated to apprise the defendant of the pendency of the action. Those are our magic words. All of the procedures that are outlined in the federal rules are designed to do that. And they're presumptively above that floor, that minimum standard required by the constitution. So for example, by leaving process per you at your dwelling with your spouse, who is someone of suitable age and discretion who resides there? Well, that's a process that is reasonably calculated to apprise you of the pendency of the action, or yeah. If I deliver process to the CEO of a corporation, the mechanics of that are reasonably calculated to apprise the defendant corporation of that lawsuit now, to be sure your spouse might throw away the envelope before you get home and ditto, the CEO who, whatever reason might want to sabotage their employer. So we will talk about act,[inaudible] notice here shortly, but the procedures in federal rule four are surely reasonably calculated to apprise the defendant of the pendency of the action. Not so or not necessarily. So certain state procedures that are not enumerated in federal rule four, but are incorporated by reference therein. Imagine for example, that the state of Missouri allows service by email, you sit for an exam and I tell you that the Missouri state statute allows service to be made by sending a copy of this summons and the complaint by email, to any email address that the defendant is known to have used in the last five years. This could be your old school email address. That's been defunct since you graduated three years ago, that might be an email address that you had from your employer that you worked for for three months, one summer, several years ago, the service might go to a g-mail address that you created just for your Tinder account, a Gmail address that you haven't opened for years. If there is a state statute whose notice provisions are not reasonably calculated to apprise the defendant of the pendency of the action, you might have complied with those provisions to effect service under four E one, which incorporates those state provisions by reference into the federal rule, but they arguably fall below the constitutional floor. And thus that argument could be made. One reason that the constitutional requirements for notice have not consumed the field as the constitutional requirements for personal jurisdiction have federalized. That doctrine is that the federal courts have interpreted the qualifier of reasonableness. Very generously. The notice need only be reasonably calculated to apprise the defendant of the pendency of the action. Sometimes publication in a newspaper is all that a plaintiff reasonably can do by way of notifying. The defendant and courts have been sympathetic. Now, obviously the notion that a defendant who cannot be found will read a legal notice that appears in tiny type in the back pages of a newspaper. That's a very fictitious understanding of notice yet, if that's all right, that is reasonable. The courts have acquiesced. Let's leave this discussion of constitutional requirements about notice and address a very practical point. That is essential for your of notice notice with a capital and notice is a term of art. It is a defined term. And what it is defined to mean is that the plaintiff has complied with the prescribed requirements for service. That means that the defendant has capital N notice when the plaintiff has complied with the prescriptions of federal rule four in federal court or the prescriptions of state law in state court. This means that a defendant who has capital in notice may or may not have actual notice. That's why I distinguish capital N notice where the plaintiff has done what they are obliged to do with lower case and notice, or maybe even notice with a K since the defendant doesn't actually know they've been sued. When you are a plaintiff, you are worried about capital N notice. You must comply with the rules for serving the defendant and you follow the rules. At which point we deem the defendant to have capital and notice actual notice, lower case, N notice notice with a K that's not really your problem and is even somewhat beyond your control. If the spouse throws away the complaint, the defendants still had capital N notice for
Speaker 2:E to be permitted it's
Speaker 1:Service on an individual by leaving a copy of the process at the individuals dwelling with someone of suitable age and discretion who resides there. Now, you might be worried about what happens there. Well, what's going to happen if the spouse throws the process away is that a default judgment is going to enter because the defendant will never respond. And that defendant might then move to vacate the default judgment under federal rule 60 claiming excusable neglect, but let's be clear. That's not a problem with capital N notice or service. Again, actual service is not the plaintiffs problem. Rather, the plaintiff's obligation is to follow prescribed procedures that are reasonably calculated to apprise the defendant of the pendency of the action. The idea of distinguishing capital in notice from lower case and notice or notice with it. Kay, that distinction allows me to make two very important points. Notice with a capital N does not guarantee lowercase N notice or notice with a K that's what we've been saying here, all along. That's the first point, but also here comes the second point lower case and notice actual notice or notice with a K. Those are not that substitutes for capital in notice that is as the plaintiff has an obligation to follow the prescription for capital and notice, and it is not enough to say, wow, the defendant has actual notice. That's good enough. The defendant might have actual notice yet still be able to get an action dismissed for your failure as plaintiff to comply with the notice requirements of federal rule four. So what are those two points that I was trying to make notice with a capital N doesn't mean actual notice. That's the first point. And secondly, actual notice doesn't mean capital and notice. Finally, we can address the fourth part of this episode, and that is waiver waiver can be inadvertent or advertent let's address inadvertent waiver. First, if a defendant failed sales to raise their 12 before and or their 12 B five in their first filing, those objections can be waived. Look at federal rules, 12 H if you don't assert your 12 B four and your 12[inaudible] properly, you will have waived any objection that is available to you. That should sound familiar because it's just like personal jurisdiction. And other than to repeat one last time, put it in your first filing or else. I'm not going to say anything more about that inadvertent waiver here. The other species of waiver is much more interesting. This is the advertent the intentional waving of the objection to service for this. I find it useful to describe all of the mechanics of service that we were talking about service upon individuals in the United States service upon foreign individuals, miners, and incompetent persons, foreign governments, state governments, all of that is a very old school phenomenon. The old school of service is centuries of Anglo American jurisprudence. Tankering would the technical requirements for service, and it can seem a little archaic and silly to calibrate the requirements so that you can leave it at someone's house, but not at their workplace. You can hand it to the officer of a corporation in a parking lot, but maybe not with the secretary at the front desk. And what do we do if somebody lives in a hotel while all of these requirements are set out in the many, many paragraphs of rule four, another paragraph of that rule, paragraph four D charts and new course, or at least a current alternative for many circumstances, this new alternative course provides for waiver. A plaintiff can ask the defendant to waive service, and the defendant has a duty to avoid the unnecessary expenses associated with the old school techniques of service. So this is very unlike personal jurisdiction. This is a situation where the rules allow a plaintiff to ask the defendant to wave. And the defendant has a duty to avoid the unnecessary expenses associated with service of process. This waiver regime features both a carrot and a stick. The carrot, the enticement, the incentive is that defendants who waive service will get additional time to respond to the complaint. Defendants get 60 days from the date that the request for waiver was sent that's 60 days instead of the 21 days from service that would otherwise apply. In addition to that carrot, that incentive, there is also a stick, a disincentive for those who do not want to cooperate in circumstances where the duty to avoid the unnecessary expenses associated with all of the old school techniques of service applies in those circumstances, which are outlined in the rule. A refusal to waive puts the defendant on the hook for the plaintiff's expenses associated with old school service. That means that the defendant is ultimately going to get the bill issued by the process server who had to wait in the bushes. The defendant's going to get the bill for the expenses associated with researching where the defendant's dwelling is, or the expenses associated with figuring out who is the managing agent for this charity or this corporate defendant. So in certain circumstances, not all circumstances, but in certain circumstances, a defendant has this duty to avoid the unnecessary expenses associated with old school service and the carrot and the stick apply in those limited circumstances. Two concluding thoughts. One is that generally speaking, the drafters don't want federal rule four to become so technical that it interferes with substantial justice. So expect some liberal construction at the margins of federal rule for the quickest way to capture. This is with the notion that the technical requirements of federal rule four shouldn't interfere with the mandate of federal rule one, which is to secure the just speedy and inexpensive determination of every action. Let's not get overly technical then in federal rule four that's one final takeaway. My second concluding thought, remember, service of process is only about service of process. This is not about personal jurisdiction. This is not about subject matter jurisdiction. This is not about venue. All of those objections stand separately. And when you're tackling them, you want to address them. Separately. Service of process is about waiver 12 before 12[inaudible] and the constitutional check that concludes this episode, that the civil
Speaker 3:Procedure podcast, I appreciate your attention, and I hope you have a good day.