Multiple Choice from 2004 CivPro Exam
Multiple Choice from 1999 Exam

Tricky Service Multiple Choice from 2005 Exam

Updated:

2. The P Corp. (incorporated in Delaware with its principal place of business in New York) sues the D Corp. (incorporated in Pennsylvania with its principal place of business in Pennsylvania) in the Federal District Court for the Southern District of New York. The P’s Corp.’s suit is for the $100,000 in damages that it suffered when the D Corp. breached a contract to deliver coal to the P Corp.’s factory in New York. An employee of the P Corp. serves the D Corp. through in hand service on the Chief Legal Officer of the D Corp. while the officer is on vacation in California. The D Corp. makes a motion to dismiss for insufficiency of service of process. Which of the following is most accurate?

a. The D Corp.’s motion will succeed. It may be served only in New York.

b. The D Corp.’s motion will succeed. It may be served only in New York or Pennsylvania.

c. The D Corp.’s motion will succeed if the service was contrary to New York law.

d. The D Corp.’s motion will succeed if the service was contrary to New York and California law.

e. The D Corp.’s motion will not succeed, because service by an employee of a corporation is not service by the corporation.

 

ANSWER

 

a. The D Corp.’s motion will succeed. It may be served only in New York.

Wrong. This is just plain false. Just because a suit is being brought in a federal court in New York does not mean that the defendant can be served only in New York. Nothing in the federal rules or in what was said in class or in the reading suggested otherwise.

3 chose this.

b. The D Corp.’s motion will succeed. It may be served only in New York or Pennsylvania.

Wrong. Once again, this is just plain false. As we have seen, simply because New York is the state where the federal court is located does not mean it is the only state where the D Corp. can be served. Furthermore, just because Pennsylvania is the D Corp.’s principal place of business and place of incorporation does not mean that it is the only other state where the D Corp. can be served. Once again, nothing in the federal rules or in what was said in class or in the reading suggested otherwise. The truth is defendants, including corporate defendants, can be served in any district.

6 chose this.

c. The D Corp.’s motion will succeed if the service was contrary to New York law.

Wrong. There are three primary ways that service on a corporation can be correct, according to FRCP 4(h). The first is if it is “pursuant to the law of the state in which the district court is located” (i.e. New York law). But there are two other possibilities: if it is “pursuant to the law of the state … in which service is effected” (i.e. California law) or by “delivering a copy of the summons and of the complaint to an officer, a managing or general agent.” So this answer is wrong. 41 chose this.

d. The D Corp.’s motion will succeed if the service was contrary to New York and California law.

Wrong. Once again, there are three primary ways that service on a corporation can be correct, according to FRCP 4(h). The first and second are “pursuant to the law of the state in which the district court is located [New York law], or in which service is effected [California law].” But the third is by “delivering a copy of the summons and of the complaint to an officer, a managing or general agent.” Even if service was contrary to New York and California law, this third method could have been satisfied. Indeed, it appears that it was satisfied, since the Chief Legal Officer of the D Corp. was served in hand. The only reason to think that the third standard was not satisfied is that 4(c)(2) requires that service be “effected by any person who is not a party” and given that an employee of the P Corp. served, one might argue that the P Corp. itself (which is a party) served. This problem is answered below. 69 people chose this.

e. The D Corp.’s motion will not succeed, because service by an employee of a corporation is not service by the corporation.

Correct. This is the best answer because it responds to the only reason to believe that service was ineffective. As we have seen, it looks like service was correct (whether or not it was contrary to California and New York law) because the Chief Legal Officer of the D Corp. was served in hand, which counts as “delivering a copy of the summons and of the complaint to an officer, a managing or general agent.” The only reason to think that service was improper is that 4(c)(2) requires that service be “effected by any person who is not a party” and given that an employee of the P Corp. served, one might argue that the P Corp. itself (which is a party) served. That worry is answered here. Although the law on this matter is sketchy, federal courts, in interpreting 4(c)(2), have held that employees of a party are not the party for the purposes of 4(c)(2). See e.g. De Vos & Co. v. Profilati Italia, 1997 WL 109474 (S.D.N.Y); United States v. Gregor, 1989 WL 6388 (N.D.Ill.). I did not expect you to know this, but you should have known that this answer was the best one, since it alone answered the reason to believe service was ineffective. Only 45 chose this. However those who whose this were much more likely to do well on the rest of the exam than those who chose any other answer.

 

Comments

Ben Abel

Doesn't P also have to mail a copy of the summons and complaint to D for the service to be proper?

Michael Green

No - not required in 4(h) except "if the agent is one authorized by statute and the statute so requires," which is not the case here.

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