Multiple Choice from 2008 Civ Pro Exam
Essay Question from the 2008 Civ Pro Exam

Multiple Choice from the 2008 Civ Pro Exam

Question 7.

P (a domiciliary of California) is suing D1 (a domiciliary of South Dakota who works in North Dakota for the D2 Corp. as a low-level broker) and the D2 Corp. (a brokerage company incorporated in the state of California with its principal place of business in North Dakota). P’s suit was filed in the federal district court for District of Minnesota and is for federal securities fraud. P is asking for $100,000 alternatively from either D1 or the D2 Corp., for damages due to misrepresentations concerning securities that D1 made (on behalf of his employer) to P in California. Under Minnesota law, only a non-party 21 or older may serve a defendant. Under North Dakota law, anyone older than 21, including a party, may serve a defendant. Under California and South Dakota law, only a non-party over 18 may serve a defendant. Furthermore, under South Dakota law, it is impermissible to serve an individual by leaving the summons and complaint at the individual’s home with someone other than that individual. In which of these cases is service on D1 least likely to be adequate?
 
a. A 20-year-old a process server gives D1 the summons and complaint in hand while D1 is on a business trip in Minnesota.


b. P’s lawyer (who is 40 years old) gives D1 the summons and complaint in hand while D1 is on a business trip in Minnesota.


c. A 21-year-old process server leaves the summons and complaint at D1’s home in South Dakota with D1’s husband.


d. P gives the summons and complaint to D1 in hand in North Dakota.


e. A 20-year-old process server gives D1 the summons and complaint in hand while D1 is on a business trip in California.

ANSWER

a.            A 20-year-old a process server gives D1 the summons and complaint in hand while D1 is on a business trip in Minnesota.

Wrong. The relevant FRCP for service on individuals is 4(e), which says:

(e) Serving an Individual within a Judicial District of the United States.

Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

    (A) delivering a copy of the summons and of the complaint to the individual personally;

    (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

    (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

In addition, FRCP(c)(2) says the following:

 (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

In this case, service was clearly adequate. 4(c)(2) was satisfied, since the server was a non-party at least 18. And 4(e)(2)(A) was satisfied, since this person gave D1 a copy of the summons and complaint personally. It does not matter what any state law says on the matter, since P is not relying on FRCP 4(e)(1).

b.            P’s lawyer (who is 40 years old) gives D1 the summons and complaint in hand while D1 is on a business trip in Minnesota.

Wrong. Once again service was clearly adequate. 4(c)(2) was satisfied, since the server was a non-party at least 18. (We discussed in class the fact that a party’s lawyer is not a party for the purpose of 4(c)(2).) And 4(e)(2)(A) was satisfied, since the server gave D1 a copy of the summons and complaint personally. Once again, it does not matter what any state law says on the matter, since P is not relying on FRCP 4(e)(1).

c.             A 21-year-old process server leaves the summons and complaint at D1’s home in South Dakota with D1’s husband.

Wrong. Once again service was clearly adequate. 4(c)(2) was satisfied, since the server was a non-party at least 18. And 4(e)(2)(B) was satisfied, since the server left a copy fo the summons and complaint “at the individual’s dwelling or usual place of abode with someone of suitable age and
discretion who resides there.” Once again, it does not matter what any state law says on the matter, since P is not relying on FRCP 4(e)(1).

d.            P gives the summons and complaint to D1 in hand in North Dakota.

Correct. This is the case in which service on D1 is least likely to be adequate. Why? 4(c)(2) was not satisfied, since the server was a party. Could one argue that service was OK, since the service was OK under state law? It is true that under FRCP 4(e)(1), an individual…may be served in a judicial district of the United States by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” In this case, the relevant state law methods are Minnesota (the state where the district court is located) and North Dakota (the state where service was made).

Minnesota law won’t work, because it requires a non-party to serve. But under North Dakota law, anyone older than 21, including a party, may serve a defendant. But, as I discussed in class, it is unlikely that FRCP 4(e)(1) refers to requirements concerning who may serve, but instead only to how service is effects (e.g. can it be left at the defendant’s door). It seems much more likely that FRCP (c)(2) governs who may serve. Therefore, this is the service least likely to be adequate.

e.            A 20-year-old process server gives D1 the summons and complaint in hand while D1 is on a business trip in California.

Wrong. Service was clearly adequate. 4(c)(2) was satisfied, since the server was a non-party at least 18. And 4(e)(2)(A) was satisfied, since the server gave D1 a copy of the summons and complaint personally. Once again, it does not matter what any state law says on the matter, since P is not relying on FRCP 4(e)(1).

Comments

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name is required. Email address will not be displayed with the comment.)