Pleadings Flashcards
An attorney from State A helped a client from State B purchase property in State A. The two corresponded regularly through the mail while they were working on the transaction. The attorney ultimately arranged the purchase of the land for the client, but the client failed to pay the attorney’s legal fees.
The attorney sued the client for the unpaid fees in State A state court, providing notice by publication in a local State A newspaper as allowed under State A law. The client has now approached you for advice on whether the notice by publication is constitutionally sufficient under these circumstances. What is your advice?
The notice is insufficient, because this is an in personam action, the attorney is aware of the client’s mailing address, and the two have previously corresponded through that address.
Correct. Because the facts indicate that the attorney had previously corresponded with the client and was aware of the client’s address, using that address to achieve notice would be more reasonably calculated to apprise the client of the action than notice by publication. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) (“The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”).
An attorney from State A helped a client from State B purchase property in State A. The two corresponded regularly through the mail while they were working on the deal. The attorney ultimately arranged the purchase of the land for the client, but the client failed to pay the attorney’s legal fees.
The attorney sued the client for the unpaid fees in State A state court, sending notice by certified mail to the client’s mailing address through which they had previously corresponded. After the mail was returned to the attorney marked “undelivered,” the attorney published notice of the suit in a local State A newspaper as is permitted under State A law. The client never learned of the case, failed to appear within the required time period, and the court entered a default judgment in favor of the attorney.
When the attorney attempted to enforce the default judgment in State B, the client attacked the judgment by arguing that notice in the original State A case was constitutionally defective. Which of the following would be an appropriate decision of the court with respect to the client’s challenge?
Rule in favor of the client, because once the attorney knew that the attempted mailed notice failed, he was responsible for attempting another method of notice reasonably calculated to apprise the client of the action.
Correct. Jones v. Flowers, 547 U.S. 220 (2006), teaches that if the chosen method of service is known to have failed, then another method must be pursued. However, that does not relieve subsequent methods of the need to comply with Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), meaning that one must still attempt notice reasonably calculated to apprise the party of the pending action. Here, given the possession of the client’s address, notice by regular mail or posted notice on the State A property would be a more reasonable available alternative to publication. Jones v. Flowers, 547 U.S. 220 (2006) (“We hold that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.”).
In Capitol City in State A there is a local town ordinance that permits the condemnation of any physical structure deemed by a judge—after a hearing—to be a public nuisance. Under the ordinance, notice of the hearing to property owners must be given by posting a notification on the property of the time and location of the hearing 30 days in advance. The consequence of a condemnation is a $50,000 fine secured by a lien on the property. If the fine goes unpaid for 90 days, the town may foreclose on the property and sell it—subject to an obligation to improve it—or retain the property for demolition and remediation. Any demolition must be preceded by a notice in the local newspaper one week in advance of the destruction.
An heir inherited 30 Sand Bluff Terrace in Capitol City, a property with an unimproved early 20th Century home built on it in much need of improvement. Local real estate records listed the heir as the owner of the property and included the heir’s main home address. After inheriting the property, the heir never visited it but simply put the deed in his safe deposit box.
Capitol City authorities initiated condemnation proceedings against this property in State A state court, notifying the heir by posted notice 30 days in advance and indicating that if condemned, there would be 90 days to pay the fine to redeem the property. After a hearing at which the heir failed to appear, the court identified this property as a nuisance and declared it condemned. After 90 days, the town foreclosed on the property and decided to demolish it.
After reading a newspaper notice of the plan to demolish the property the heir initiated an action in federal court seeking an injunction, challenging the ordinance and the actions of Capitol City as unconstitutional under the Due Process Clause of the Fourteenth Amendment. Which of the following would be an appropriate decision of the court with respect to the heir’s challenge?
Uphold the challenge, because posted notice and constructive notice by publication are insufficient given the availability of the heir’s home address.
Correct. The notice is deficient, given the city had access to the heir’s address. Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (“The County’s use of these less reliable forms of notice is not reasonable where, as here, ‘an inexpensive and efficient mechanism such as mail service is available.’” (quoting Green v. Lindsey, 456 U.S. 444, 455 (1982))); see also Schroeder v. City of New York, 371 U.S. 208 (1962); Walker v. City of Hutchinson, 352 U.S. 112 (1956).
The president of a bank brought an action against a coworker for defamation in State A federal court by filing a complaint on January 1, 2020. On January 20, 2020, the bank president sent the summons and complaint via first-class mail to the coworker at the coworker’s State A home, which the coworker did receive.
The coworker asks you, the coworker’s attorney, whether service in this manner is sufficient. What is your advice?
The answer depends on whether State A law permits service of process via first-class mail.
Correct. Although the Federal Rules do not explicitly permit service by first-class mail, Rule 4(e)(1) does permit reliance on (constitutional) state-approved methods of service. Thus, before the coworker’s question can be answered, a lawyer must consult State A law to determine whether it permits service of process by first-class mail. See, e.g., Alvion Properties, Inc. v. Weber, No. 3:08-0866, 2012 WL 481858, at *4 (M.D. Tenn. Feb. 13, 2012) (“Although Rule 4 itself does not authorize service of process by mail, the corresponding Tennessee state court rule does permit service of a summons and complaint upon a defendant by U.S. mail, registered return receipt or certified return receipt.”).
The driver of a car brought an action against a pedestrian for negligence in State A federal court by filing a complaint on June 1, 2020. On June 23, 2020, the driver had a process server serve a copy of the summons and complaint by personally delivering them to the pedestrian’s home in State A. Because the pedestrian was not there, the process server gave the summons and complaint to the 17-year-old son of the pedestrian who answered the door and resides there. The son is a high school senior who is captain of the debate team and is ranked first in his class.
After receiving the summons and complaint from the son, the pedestrian filed an answer denying all of the allegations in the complaint. Included within the answer, the pedestrian raised the defense of insufficient service of process and sought dismissal of the complaint on that ground. How should the court rule on the challenge to service of process?
Deny dismissal, because the son lives at the pedestrian’s home and is a person of suitable age and discretion.
Correct. The Federal Rules permit service upon a person of suitable age and discretion residing at the home of the person to be served, see Fed. R. Civ. P. 4(e)(2)(B); Option A accurately identifies the son in this case as someone of suitable age and discretion. See, e.g., United Servs. Auto Ass’n v. Barger, 910 F.2d 321, 324 (6th Cir. 1990) (holding that target’s thirteen-year-old son was of suitable age and discretion to effect service); De George v. Mandata Poultry Co., 196 F. Supp. 192, 194 (E.D. Pa. 1961) (upholding service on 16-year-old residing in dwelling of defendant).
A construction worker brought an action against a supervisor for negligence in State A federal court. The construction worker achieved service by delivering the complaint but no summons via first-class mail to the supervisor at the supervisor’s State A home, as is permitted under State A law. After receiving the complaint, the supervisor responded by filing a motion to quash service based on insufficiency of process.
How should the court rule on the supervisor’s motion?
Grant the motion, because the summons was not included with the complaint when it was sent to the supervisor.
Correct. Service of process must include both the summons and the complaint for it to be proper. Fed. R. Civ. P. 4(c)(1) (“A summons must be served with a copy of the complaint.”). A defendant who wishes to raise this challenge can do so under Rule 12(b)(4), a motion to dismiss for insufficient process. In practice, such a motion may be styled as a “motion to quash service of process,” meaning that the court will set aside the service as insufficient and the plaintiff will be permitted to attempt proper service—if time remains to do so—without dismissing the action altogether.
An investor brought an action against a business partner for breach of contract in federal court by filing a complaint on June 1, 2020. On August 1 of the same year, the investor mailed a copy of the summons and complaint via first-class mail to the business partner, seeking waiver of formal service of process. On September 1, 2020, the business partner declined to waive formal service. On October 15, 2020, the investor had a process server serve the complaint formally on the business partner by delivering it to an adult living at his home. The business partner responded by filing a motion to dismiss the complaint for insufficient service of process.
How should the court rule on the business partner’s service of process challenge?
Grant the motion, because the business partner was not served within the required time period for service of process.
Correct. Service was not made within 90 days of the filing of the complaint as is required under Rule 4(m). Service of process must occur within 90 days after the complaint is filed, Fed. R. Civ. P. 4(m); there is no provision in Rule 4 for stopping or resetting that time period if a waiver of formal service is sought. If service does not occur within the requisite 90 days, the court must dismiss the action on a party’s motion unless the plaintiff shows good cause for the failure. Fed. R. Civ. P. 4(m). See Wright, Miller & Steinman, Fed. Prac. & Proc. § 1137.
ABC Corp.—a State A corporation with a principal place of business in State B—brought an action against XYZ, Inc. (a private corporation organized under the laws of Country X) in State B federal court, alleging patent infringement. Because XYZ is a foreign corporation located in Country X, and Country X is not a signatory to the Hague Convention on Service Abroad or any other service treaty with the United States, ABC decided—with approval by the State B federal court—to have a process server serve the CEO of XYZ personally when the CEO was in Country X for a meeting with industry representatives. XYZ responded by filing a motion to dismiss for improper service of process.
How should the court rule on XYZ’s motion?
Deny the motion, because the court has approved this method of service.
Correct. Rule 4(f) (the governing rule under Rule 4(h)(2) for serving corporations abroad) can authorize service “by other means not prohibited by international agreement, as the court orders.” In this case, the court approved service on the CEO in Country X, making the method sufficient under Rule 4(f). Fed. R. Civ. P. 4(f)(3), 4(h)(2); Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002).
A buyer from State A initiated an action in federal court against a seller (an individual citizen of State B) for breach of contract. To achieve service of process, the buyer’s attorney personally delivered the summons and complaint to the seller’s 19-year-old roommate at their apartment in State B.
Twenty days later, the seller responded by filing a motion to dismiss for insufficient service of process. How is the court likely to rule?
Deny the motion, because service on a person of suitable age residing at the dwelling of a party is a permissible method of serving process.
Correct. A 19-year-old person residing at the home is a person of suitable age and discretion and Rule 4(e)(2) permits service on an individual in this manner. United Servs. Auto Ass’n v. Barger, 910 F.2d 321, 324 (6th Cir. 1990) (holding that target’s thirteen-year-old son was of suitable age and discretion to effect service). Incidentally, there is also no problem with the fact that the attorney served the documents; only parties themselves are prohibited from serving a summons and complaint. Trustees of Local 727 Pension Fund v. Perfect Parking, 126 F.R.D. 48, 52 (N.D. Ill. 1989) (holding that defendants were served properly by plaintiff’s counsel).
A 17-year-old college student from State A was involved in a car accident with a pedestrian. The pedestrian initiated an action against the college student in State B federal court, seeking $100,000 in damages on a negligence claim. Under State B law, service on a minor is to be made upon the minor’s parent, guardian, or any person having legal custody of the minor or, if none are available, upon any other person with whom the minor resides. State A has the exact same law governing service of process on minors.
The pedestrian achieved service by having a process server serve the summons and complaint on the college student’s mother in State A. The college student no longer lives with the mother but rather lives in an apartment near the college. The mother promptly mailed the summons and complaint to the college student. The college student responded to the complaint two weeks after the mother received it by filing a motion to dismiss for improper service of process.
How is the court likely to rule on the motion?
Deny the motion, because service was made consistent with State A law.
Correct. Under Rule 4(g), when a minor is being served, it must be done pursuant to the law of the state where service is to be made, which was done here.
ABC, Inc. initiated a breach of contract action in State A federal court against XYZ Corp. ABC achieved service by having a process server deliver the summons and complaint to a member of the XYZ Board of Directors in State A, as is permitted under State A law.
XYZ timely responded by filing a motion to dismiss for insufficient service of process. How is the court likely to rule?
Deny the motion, because State A law permits service in this manner.
Correct. Under Rule 4(h)(1)(A) service may be made in the manner prescribed by Rule 4(e)(1), which permits service under the law of the state where service is to be made or where the action is pending. Here, service on a corporate director was consistent with State A law and so the motion should be denied.
