[Another “Big Tony” lesson here, for those of you who are familiar with him from prior posts. This has really become a more prevalent thing lately, and I have to address it.]
With pretty high frequency, we’ll determine on the eve of sending a Hague Service Request that our client (almost invariably plaintiff’s counsel) has listed an address in the summons that doesn’t jive with the address indicated in an entity defendant’s state registry. We always recommend going with the registered address because that’s what Big Tony, my BusOrg (called simply Corporations back in the day) professor in law school, told us to do.
That’s the entire point of a resident agent,* he said while describing Missouri’s statutes on corporations, LLC’s, LLP’s, etc., so don’t get cute– just serve the agent. (He was also the guy who insisted that litigators shouldn’t even bother to file if they couldn’t get the defendant’s name correct.)
Big Tony was then, and remains today, a prophet.
Eight times out of ten, counsel agrees with our recommendation and says “okay, go where the registry tells you to go.” Perhaps a tenth of the time, there’s some procedural reason to stick with the summons address, so we proceed cautiously, with the caveat that it might work or it might not.
But then there’s that last time out of ten, where our client directs us to stick with the address they have for some other reason. So we have to ask… where’d that address come from?
- It’s the service address the defendant indicated in the contract. Well, okay, that’s plausible, we say. If service fails, you can point to that when the judge gets irritated that you have to tee up another long wait. Although… how old is the contract? Has the defendant been acquired or merged with someone else? And isn’t that the contract they allegedly breached? Lots of issues still remain. But you’re the boss.
- It’s the address the defendant indicated in a responsive pleading in another case. Ibid. Caveat ibid.
- That’s the address on the defendant’s website. Um, no. Just… no.
- The company’s SEC Form F-4 says so. Or its SAFER Company Snapshot. So, you’re relying on self-reporting?
- That’s where opposing counsel told us we should go. Whoa– tap the brakes, there, pal.
The last three set my teeth on edge. Hear me out.
That’s the address on the defendant’s website.
So what?! That could just be a customer service office. It could just be the street address of the company’s loading dock, while the hive mind is housed around the corner. Sure, if they expressly say it’s their headquarters, perhaps, but even that is tenuous. Who do you go to at the HQ? Hand everything to to Timmy the Mailroom Clerk? Force your way past security to reach the CLO? Yes, state rules may give you the option of headquarters or registry, but why bother with a maybe when a sure thing is right in front of you?
Bear in mind that websites are marketing devices, nothing more. They are not expressions of hard & fast legal reality (think puffery from Contracts when you were a 1L). How many websites out there can’t even get the entity’s legal name correct, much less the entity’s legal address? Hint: LOTS. Because the kids in the marketing shop don’t run things by legal before they post.
Best example: you don’t serve General Motors at the Renaissance Center in downtown Detroit. You don’t serve Ford at the River Rouge complex out in Dearborn. You serve them at their respective registered agents’ offices in Wilmington, Delaware. Why? Because they can’t weasel out of service there. That’s the whole point of having a registered/resident agent.*
Or how about Stellantis, the big multinational that came about when Peugeot bought out Fiat-Chrysler? If Stellantis is a defendant, you definitely don’t serve them via Chrysler (technically now Stellantis North America) in Auburn Hills– another Detroit suburb. You serve Stellantis N.V. at its registered address in Hoofddorp, Netherlands.**
That’s what the defendant listed in its U.S. government filings.
Okay, fair enough, but who completed the filings? Did they indicate the compliance officer’s address, or general counsel, or the CEO’s office? It’s not a 100% reliable indication. To be sure, if we can’t even find a registry in Notamerica,*** this is unquestionably the best source we have, but if the Notamerica corporate registry conflicts with the U.S. government filings, which one is more authoritative under Notamerica law?
That’s where opposing counsel told us we should go.
Oh, where to begin…
Look, I get it. You want to trust a colleague and play nicely in the sandbox. Strive mightily, but eat and drink as friends… I’ve been incredibly blessed to have adversaries I respect, admire, and work (and eat and drink) well with.
But if opposing counsel were so forthcoming with correct (or at least, not misleading) information, why wouldn’t s/he simply file an appearance and get on with it? More to the point, if the defendant were that forthcoming with its counsel, why wouldn’t they simply waive? You wouldn’t need Viking Advocates to sail out into Notamerica to plunder. You wouldn’t need to hand us a four- or five-figure check (occasionally, six!) to go out and get those defendants served.
Wrapping it all up.
So back to Big Tony. Not your typical law professor, Tony had been to the wars. After thirty years in corporate litigation, he had an opportunity to teach would-be lawyers the lessons he’d learned over the decades. Chief among the lessons: pay attention to who the defendant is, and make sure you tag them in the right place. For the record, neither of my Civ Pro professors ever even mentioned service of process (and I chided them for it in a CLE lecture one fall morning in a Paris conference room)… but Big Tony did.
He was emphatic about getting it right the first time. So if you’re presented with (1) an authoritative official source and (2) a plausible-but-unofficial source, your best approach is to go with Door #1.
* Important to note is that registered agents just aren’t a thing in most of the world. Outside North America and the Caribbean, entities usually just have registered addresses.
** By coincidence, Stellantis’ Hoofddorp headquarters is its registered address, so nothing to quibble about. You just can’t hit them in Michigan.
*** That doesn’t mean the entity doesn’t exist. Many countries don’t even have a registry, Mexico being our biggest problem child. It just means we have no choice but to rely on the U.S. government source.