Justice Robert H. Jackson– of the U.S. Supreme Court and the prosecution team at Nuremberg— author of Mullane.

A bit of 4L stuff here– the stuff they never mentioned in Civ Pro class because it was so basic as to be assumed [ahem, we all know what assumptions do].  Your assigned readings today are Mullane v. Central Hanover Bank Trust Co, 339 U.S. 306 (1950)  and  Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).  Additionally, read the Hague Service Convention and the Supremacy Clause.  Be prepared to discuss both cases in a sadistic Socratic “rolling boulder” scenario.

The topic: service of process, both (1) generally speaking and (2) more specifically as it relates to defendants located abroad.

To boil it all down, a plaintiff has to tell a defendant that a lawsuit has been filed and the defendant has X days to answer the complaint.  The defendant is literally summoned to court by the plaintiff.  But there’s nothing in U.S. law that absolutely, positively requires that process be placed into the hands of a defendant.  Nada, zip, zero, zilch– despite how old TV shows might portray the event.  To the chagrin of many defendants, they can’t simply refuse to take hold of an envelope when a process server walks up to them.   The encounter itself is sufficient, regardless of their acceptance.

Conversely, it’s not enough for a plaintiff to tack a summons on the bulletin board at the neighborhood coffee shop, in the hope that the defendant will see it.  The plaintiff has a responsibility, and it amounts to this:  service by a means reasonably calculated to give the defendant (1) notice and (2) an opportunity to defend against the claim.  (Pay attention to that verbiage, because there’ll be a quiz later on.)

The methods most often used:

  • In most instances, a “means reasonably calculated” entails a sheriff, marshal, or professional process server walking up to the defendant– or up to the defendant’s house, or into a corporate defendant’s registered office– and handing him/her/it an envelope of documents.  If he* refuses to take it, too bad.  The person serving can simply drop the documents at his feet and the job is done.
  • “Reasonably calculated” can also include serving someone by mail.  At least legally speaking, it’s on solid ground.  Factually, though, a bit shaky.  As in “prove it, pal.”  If you can’t demonstrate that the defendant actually signed for the package, you’ll have a tough time claiming that he was served– especially if you can’t prove that you have the right address.
  • And a method that we old duffers may recall is the “legal notices” section of the local newspaper.  Service by publication, they call it, and it’s still on the books in lots of jurisdictions to this day.  As a last resort, I’m okay with it, just to demonstrate that the plaintiff is trying, even though the defendant has gone deep underground (ie: vanished).  But it’s only okay if everything else has been tried and failed.  Honestly, when is the last time a non-lawyer read the legal notices section in the local paper?  At that, when’s the last time most people read the local paper?  A gross legal fiction if ever there was one, but if a defendant has gone completely dark, it’s the only way.

Overseas, things work a bit differently, especially in civil law jurisdictions (eg: anyplace that wasn’t once a British colony).  Service of process in civil law systems is a prerogative of the court, rather than the responsibility of the plaintiff.  Long ago, a method called notification au parquet entailed tacking a notice on the aforementioned bulletin board– only the board wasn’t at the local coffee shop.  It was at the public prosecutor’s office.  Today, N.P. has pretty much gone the way of our newspaper notices– still on the books in many places, but given its lack of realistic odds of success, this (even more gross) legal fiction is also a last resort.

But back to today’s assigned reading.  Mullane set out the “means reasonably calculated” standard.  Schlunk takes that idea a step further by confirming that if a defendant has to be served in another country that is party to the Hague Service Convention, then the Convention’s strictures must be followed.  Period.  The Supremacy Clause puts it above FRCP and state rules (although FRCP and quite a few states have codified Schlunk anyway).

In most civil law jurisdictions, that means the private process server option is off the table– even if the “destination state” doesn’t object to Article 10.

The ultimate takeaway: don’t play fast & loose with the defendant’s right to notice, and certainly don’t play fast & loose with the doctrines that govern how things have to happen when paper crosses a border.

Class dismissed.  See you next week when we discuss the extraordinary value of Civ Pro professors who wear bow ties.**


* With a nod to gender equality and an accurate statement by Mitt Romney (he was right, I hate to admit), I’m leaving out the he/she/it distinction from here.  I use “he” merely for simplicity.  My mom would thwock me on the head if I were intentionally disrespectful to women.  My wife and sister would join in.  And they’d be justified.

** A bit of an homage to my good friend Jeffrey Berman, who retired a couple of years ago as Associate Dean at UMKC Law.  He was my Civ Pro 1 professor, and used Beanie Babies to beautifully illustrate the concept of joinder.  We never got into the tall weeds of service of process (thus the impetus for this post), but I learned a bunch from him.

This caused no small amount of anxiety about his presence in my CLE lecture in Paris in the fall of 2016.  Teaching your teacher is an awesome, yet incredibly daunting, experience– especially when you live in the subject the fellow taught you.  But he came up afterward, shook my hand, congratulated me, and said he learned a bunch.  Like the Grinch’s heart on Christmas morning, my head swelled to three times its normal size that day.

I have on very good authority that Jeffrey still wears a bow tie as he teaches 1L Civil Procedure as professor emeritus, and 1Ls come out of the Beanie Baby lecture with a keen understanding of how whales can sue husband & wife unicorns.  Just sayin’.