Two Multiple Choice Questions from the 2008 CivPro Exam
Easy Multiple Choice from the 2010 CivPro Exam

Short Essay Question from the 2003 CivPro Exam

Updated:

22. P, a citizen of New York, is suing D, a citizen of Nebraska, for violations of federal securities law in the Federal District Court for the District of Nebraska. Assume that, under Nebraska law, service may be effected upon an individual defendant by having any person who is at least 21 years of age nail a copy of the summons and complaint to the front door of the defendant’s place of abode. P, who is 30 years old, nails a copy of the summons and complaint on the door of D’s home. This form of service would be sufficient if the suit had been brought in a Nebraska state court. In her answer, D argues that P’s action should be dismissed for insufficient service. Should D succeed in getting P’s action dismissed? 

ANSWER

This is Glannon v. Green. There are two relevant Fed. Rs. Civ. P. to look to. Under R. 4(e)(1), service may be effected "pursuant to the law of the state in which the district court is located." That suggests that service was adequate, since Nebraska law on service was abided by. But under R. 4(c)(2), service may be effected "by any person who is not a party and who is at least 18 years of age." The question is whether 4(e)(1) trumps 4(c)(2) (in which case service is adequate) or visa-versa (in which case it is not).

In those situations where state law is more restrictive that 4(c)(2) about who may serve (for example, it requires an official process server), Glannon has argued that 4(e)(1) trumps 4(c)(2). When one uses 4(e)(1) and serves according to state law, state law on who may serve applies too, whatever 4(c)(2) might say. That would suggest that, in situations such as the current one (when state law is less restrictive than 4(c)(2) about who may serve), someone who is using 4(e)(1) and serving according to state law may take advantage of state law about who may serve, even if 4(c)(2) is violated. I think that Glannon is wrong and that 4(c)(2) trumps 4(e)(1). Accordingly I would say that D would be successful in getting the action dismissed. If you choose Glannon's approach instead, that's fine, although you needed to say that there is a conflict between 4(c)(2) and 4(e)(1).

 

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