Essay Question from the 2008 Civ Pro Exam
Multiple Choice Question from the 2007 Civ Pro Exam

Multiple Choice from 2007 Civ Pro Exam

1.    P (a citizen of New York) files a complaint against D (a citizen of Wisconsin) in the Federal District Court for the Southern District of New York. P’s suit is for violation of federal securities laws that occurred in Wisconsin. D has never been to the state of New York and has never had any contact with the state. P hires a process server to serve D in Wisconsin. After knocking on the door of D’s home and finding no one there, the server affixes the summons and complaint to D’s front door. This manner of service is valid under New York law but not under Wisconsin law. D makes a pre-answer motion to dismiss for insufficient service of process. Which of the following is most accurate?
    
a.    D’s motion should succeed. Under Hanna v. Plumer, the federal service rule applies. 
b.    D’s motion should succeed. Because P’s action has federal question subject matter jurisdiction, the federal service rule applies.
c.    D’s motion should succeed. D must be served within the state of New York.
d.    D’s motion should succeed. Since the federal service rule was not satisfied, service must be in accordance with Wisconsin law – the law of the state where D was served.
e.    D’s motion should not succeed.

ANSWER


Answer a is wrong for a number of reasons. First of all, Hanna is largely irrelevant, because this is a federal question, not a diversity case. Hanna addressed the question of whether Fed. R. Civ. P. 4(e) should be used to assess service when a federal court is sitting in diversity (or whether only the service standard of the state where the federal court is located should be used). 

Second, and more importantly, a is wrong, because state law methods are identified in 4(e) itself as a means of adequately serving. There are five ways of satisfying Rule 4(e). Three are under what can be called the federal standard in 4(e)(2):

4(e)(2)(A) (delivering a copy of the summons and of the complaint to the individual personally). This was not done.

4(e)(2)(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).
This was not done.

4(e)(2)(c) (delivering a copy of each to an agent authorized by appointment or by law to receive service of process).
This was also not done.

But there are two other ways of satisfying 4(e), spelled out in 4(e)(1): “[F]ollowing 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.” The law of the state where service is made (Wisconsin) was not satisfied, but the law of the state where the district court was located (New York) was. 

The explanation above explains why b and d are wrong too –Although b is right that Hanna is irrelevant, it ignores the methods in 4(e)(1). And d ignores one of the methods in 4(e)(1), namely the one that refers to the law of the state where the district court is located.  

Answer c plays off of possible confusions between service and personal jurisdiction. It is true that there will be no PJ without service on D in the state of NY, since there is no other source of PJ available. But the question is about whether the service rules are satisfied, not whether there is PJ. And the service rules are satisfied. Service is not improper simply because it occurs out of the state of New York, provided that 4(e) was satisfied, which it was. 

The answer, therefore, is e. (The point biserial was .54.)

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