(TL;DR… publication is a horrible, terrible, woefully insufficient means of service, and the Supreme Court said so way back in 1950. It should only be used as a last resort, and even then, only when there’s a reasonable chance that it’ll actually notify anybody that a case is afoot.)
A story flooded my news feed last Friday… US Judge Orders a Mexican Drug Cartel to Pay $1.5 Billion to Victims’ Families. A default for a billion and a half bucks ($4.6B after it’s trebled) is almost real money in this day & age, so I got curious about the procedural posture of the case. Because I live in civ-pro, several questions popped into my head, first among them being “who got sued?” (with a bit of incredulity).
Only less prominent: “how did they serve the thing?”
Naturally, my curiosity made me dig into the docket a little, and the deeper I dug, the more frustrated I became.
For starters, suing a Mexican drug cartel is a bit like suing “the Corleone crime family.” Sure, it’s an organized group and everybody knows it exists– especially the Tattaglias and the Barzinis and the ill-fated Moe Green. In its own cinematic universe, it’s common knowledge that la famiglia really is a thing (or as they say within the thing, “our thing“).
But is it a thing in a legal sense? No.
You can’t just name a crime family in a suit and expect to collect anything; the defendant has to be an identifiable, legal person. A court can’t exercise jurisdiction over something that doesn’t legally exist, so I’m surprised this thing went through at all. I’m curious to see what assets the victorious plaintiffs can seize to satisfy the D.N.D. (North Dakota?!) judgment. Those plaintiffs and their loved ones unquestionably suffered– and greatly– at the hands of the cartel, and a big judgment is warranted against the perpetrators. But how can a non-entity cartel actually hold seizable assets?
Beyond that, it was the service question that really tickled my brain. In their 4(f)(3) motion for alternative service, plaintiffs’ counsel rightly noted that the Hague Service Convention wasn’t applicable because there was no address for the cartel (the Corleone Syndicate didn’t have one either, unless you count the Genco Pura warehouse at 514 Mott Street… and that’s next to impossible to prove*). This is a great bit of logic, but the motion didn’t truly use it to highlight the critical nature of the Convention’s inapplicability.
But they went on to cite Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007 (9th Cir., 2002) for the proposition that none of the methods outlined in Rule 4(f) supersede each other. That’s not entirely accurate. The Hague Service Convention supersedes everything in its path, given the crystal clear holding of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988). In Rio Properties, the court didn’t address Hague applicability, because it didn’t need to. Costa Rica hadn’t signed on to the treaty so there was no Hague issue as to the Costa Rican defendant. Fortunately, in the cartel case last week, the Convention likewise didn’t apply (again, no address, no applicability) so no controversy arises.
Where the controversy arises is in the due process question and the entire idea of service by publication. It’s always been a gross legal fiction, and from time to time a necessary one. But even when it was more widely recognized, it was suspect– and Justice Jackson said so.
See, I remember back in the olden days (okay, it was the 1980s, but stick with me here), when my grandmother used to get on the phone to gossip with her sisters about who in the neighborhood was getting sued. Our local paper carried a Legal Notices section and, without fail, one of the sisters knew somebody who’d been in a car accident or was getting a divorce and… snicker snicker, wow, didn’t that jerk get what was coming to him.
Fast forward to 2022 and nobody reads the Legal Notices section in the paper anymore. Really. So what in the hell makes us think that publication is a means of service that is reasonably calculated to give anybody notice of a suit.**
Rewind, now, to 1950, when some fellows in Washington, DC took up that very question– and determined the Mullane Standard for service of process. Those fellows (well, a majority of them, anyway) held very clearly that due process rights were only fulfilled if a plaintiff undertook to serve by “a means reasonably calculated, under the circumstances…” (you get the picture). Take a read of Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950) to see what I mean.
Mullane is cited over and over and over by plaintiffs seeking to serve by publication, but apparently, nobody ever actually reads the whole case. Justice Jackson was highly critical of service by publication even seven decades ago, yet courts continue to give knee-jerk credence to publication, without digging deeper into its reasonability.
I yield the soap box here.
* There is no 514 Mott Street. Mott Street only goes up to the 300 block, so…
** It’s even more farcical to suggest that a “global legal notices” website is actually read by anyone it’s ostensibly supposed to target. A plaintiff’s lawyer would be just as successful posting on his own blog, “hey, Joe Defendant, you’ve been sued… click here to see your summons.”
Author’s note: It’s been years since I’ve been able to work the greatest movie of all time into this blog, so the timing of this story is oddly fortuitous.
Two hat tips/homages– first, to the great James Caan, who died last Thursday at the age of 82. As I read the alert on my phone, the only line I could think of was “they shot Sonny on the causeway. He’s dead.” It wasn’t even his line. But this one was. Another legendary gangland actor passed the following day: Tony Sirico, who had a small supporting role in Goodfellas, was legendary as Paulie Walnuts, one of the boss’ right-hand men in The Sopranos.