Two New Articles on SSRN
Hard Multiple Choice Question from the 2006 CivPro Exam

Multiple Choice Question from the 2006 CivPro Exam

1.    P files a complaint against the D Corp. and its President, X, in the Federal District Court for the Southern District of New York. P’s suit is for violation of federal securities laws. Four days later P has a process server deliver a copy of a summons and the complaint in hand to X while he is at his office in Philadelphia, Pennsylvania. Both the D Corp. and X make motions to dismiss for insufficient service. Which of the following is most accurate?

a.     The D Corp.’s motion should succeed, but not X’s.

b.     X’s motion should succeed, but not the D Corp.’s

c.     Neither the D Corp.’s nor X’s motion should succeed.

d.     One cannot know whether the D Corp.’s or X’s motion should succeed without knowing New York law governing service.


e.    One cannot know whether the D Corp.’s or X’s motion should succeed without knowing New York and Pennsylvania law governing service. 

ANSWER

 

a.     The D Corp.’s motion should succeed, but not X’s.

Wrong. See answer c. 

b.     X’s motion should succeed, but not the D Corp.’s

Wrong. See answer c. 

c.     Neither the D Corp.’s nor X’s motion should succeed.

Correct. Service on X is correct, because FRCP 4(e) is satisfied. According to 4(e)(2), “service upon an individual … may be effected in any judicial district of the United States … by delivering a copy of the summons and of the complaint to the individual personally.” Service on the D Corp. is correct, because FRCP 4(h) is satisfied. According to 4(h)(1), “service upon a domestic or foreign corporation … shall be effected … by delivering a copy of the summons and of the complaint to an officer, a managing or general agent.” The President of D Corp. surely fits this description. 

d.     One cannot know whether the D Corp.’s or X’s motion should succeed without knowing New York law governing service.

Wrong. It is true that under FRCP 4(e)(1), service on individuals may be effected “pursuant to the law of the state in which the district court is located, or in which service is effected.” So if New York law on service (the law of the state where the district court is located) had been satisfied, then service on X would be OK. But that is only optional. Even if state law standards are not satisfied, service will be OK if the standard in 4(e)(2) is satisfied, which it is here. (See answer c.) So you don’t need to know state law on service to know whether service on X is OK. The same point applies to service on the D Corp. Rule 4(h)(1) permits service on a corporation “in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1)” (that is, “pursuant to the law of the state in which the district court is located, or in which service is effected”), but it does not require it. Incidentally, if you did think (wrongly) that you needed to know state law service rules to know whether service was adequate, you should have thought that you needed to know both New York and Pennsylvania rules, since Rule 4 refers to “the law of the state in which the district court is located [New York], or in which service is effected [Pennsylvania].” 

e.    One cannot know whether the D Corp.’s or X’s motion should succeed without knowing New York and Pennsylvania law governing service. 

Wrong. See d for why. 

 

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