Civil Procedure Outline
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| § 1391. Venue Generally
Applicability of section. — Except as otherwise provided by law — this section shall govern the venue of all civil actions brought in district courts of the United States; and the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature. This is the venue statute usually used in civil cases in federal court except if there is a different statute—applies to both federal question and diversity cases equally Venue in general. — A civil action may be brought in — a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. (b)(1) only applies if there is one ∆ (venue is proper where ∆ is domiciled) or if there are multiple ∆s who reside in the same state (where any of them are domiciled) (b)(2) “substantial” does not mean most substantial or giving rise to, just more than incidental relationship b/w district and claim (purpose: fairness to ∆) Whenever π relies exclusively on this subsection, all of the claims asserted must satisfy the substantiality requirement w/ respect to district in which suit is filed Used most often (b)(3) is a “fallback provision”—can only be used when no district would be proper under “residence” or “substantial” clauses (purpose: provide fed forum for cases where substantially all of the events giving rise to claim occurred outside of the country—then, PJx serves as substitute & PJx analysis must be satisfied) Residency. — For all venue purposes — a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled; an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to all other defendants. Covers corporations and unincorporated associations, including partnerships (c)(2) Easy to satisfy if π: principal place of business (c)(2) Easy to satisfy if there is only 1 district in a state: ∆ is resident if contacts w/ state satisfy due process standards of specific or general jx (c)(2) If there are multiple districts & ∆ is an unincorporated assn. Majority approach: only apply due process minimum contacts standards since venue is a question of federal law to which state law is irrelevant Minority approach: also apply long-arm standards on district-by-district basis to limit scope of federal venue provisions if long-arm statute’s standards cannot be satisfied in any specific district (c)(3) applies to individuals, corporations incorporated in a foreign nation, and technically US citizens domiciled abroad but no cases addressing this yet Residency of corporations in States with multiple districts. — For purposes of venue under this chapter, in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. Only applies to corporations If state has more than one district and ∆’s contacts w/ each district are so spread out that, in treating district as its own state, contacts would not satisfy PJx, ∆ deemed to reside in district w/ most significant contacts If more than one district satisfies, any of them work NOTE: if you satisfy § 1391(c)(2) & (d) you also satisfy § 1391(b)(1) & (2) since you have done min. contacts analysis to assess whether PJx could be exercised over ∆ Actions where defendant is officer or employee of the United States— In general. — A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which a defendant in the action resides, a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or the plaintiff resides if no real property is involved in the action. Service. — The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought. Essentially tracks (b)(1) and (b)(2) as applied to officer or employee of US Civil actions against a foreign state — A civil action against a foreign state as defined in section 1603(a) of this title may be brought — in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title; in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof. Multiparty, multiforum litigation — A civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place. First of Michigan Corp. v. Bramlet (6th Cir. – 1998) (Cole): Between 1989 and 1991, Bramlets invested appx. $62K in an IRA with First Of Michigan under the advice of one of its investment brokers, Michael Sobol. IRA statement in 1996 indicated loss of $37,556. Bralmets (FL residents) initiated arbitration action against First of Michigan and Sobol in FL by filing a Uniform Submission Agreement w/ Nat’l Assn of Securities Dealers (NASD), complaining that they were not provided w/ periodic statements in order to conceal account’s steady loss until it was too late to mitigate the damage. First of Michigan and Sobol filed this action in federal court in MI seeking to enjoin and dismiss arbitration claims as ineligible pursuant to NASD Code of Arbitration § 15 which bars claims relating to investments more than 6 years old, and asserting § 1332 SMJ and what is now § 1391(b)(2) proper venue. Bramlets filed MTD for improper venue. They claimed that when they began investing in 1989 they were TX residents, and that majority of incidents giving rise to their claim took place in 1990 after they moved to FL. Πs claimed “a substantial part of the events or omissions giving rise to the claim” occurred in MI—specifically, in 1989 when ∆s met Sobol in MI to convert husband’s 401(k) funds and that the IRA account originated and was established in MI and all relevant phone calls made and rec’d by Sobol were in MI. DC dismissed holding that “the most substantial event giving rise to π’s complaint for declaratory relief was ∆’s filing of arbitration action in FL 6th Circuit reversed and remanded after de novo review b/c πs challenged DC’s interpretation of § 1391 (otherwise, whether DC errs in dismissing for improper venue, usually standard is abuse of discretion since dismissal frequently implicates considering transfer under §1406(a) which is discretionary). The disputed language of § 1391 used to say “where claim arose” but was amended in 1990 to broaden venue because it implied that a claim originated in only only one district, which is not always the case. Commentary to the amendment said that the fact that substantial activities took place in district B does not disqualify district A as proper venue as long as “substantial” activities took place in A too . . . even if activities in B were more substantial or even the most substantial. DC assumed the only event triggering this suit was ∆’s filing claim in FL, but it was also based on the underlying transactions and investments made in MI. The analysis of a single occurrence which directly gives rise to a claim or whether it is the best venue is improper, the only question that is relevant is whether πs chose a forum that had a substantial connection to their claim Transfer of Venue § 1404. Change of Venue For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer. A district court may order any civil action to be tried at any place within the division in which it is pending. Transfers from a district court of the United States to the District Court of Guam, the District Court for the Northern Mariana Islands, or the District Court of the Virgin Islands shall not be permitted under this section. As otherwise used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court. If venue is proper in the fed court where case has been filed, both π and ∆ can request that it be transferred to another federal court where it might have been brought at the time of filing the original suit “where it might have been brought” = where venue and PJx would have been satisfied But, also allows all parties to consent so now encompasses transfer to district courts that would have initially lacked PJx, venue or both Motion is not waived by not raising right away, can be filed at any time—but since motion is discretionary, sometimes may be too late π’s choice of forum is a factor but not conclusive or determinative in and of itself When the transferee venue is not clearly more convenient than the venue chosen by π, π’s choice should be respected but when the movant demonstrates that the transferee venue is clearly more convenient, however, it has shown good cause the district court should therefore grant the transfer Law to be applied: Diversity cases: substantive law of transferor court follows the case, regardless of whether π or ∆ initiates transfer (Van Dusen) Federal question cases: Van Dusen does not apply based on fiction that federal law is uniform so different federal forum shouldn’t make a difference Exception: when federal law itself permits lack of uniformity Step 1: make sure claim has been filed in proper venue Step 2: could claim have been filed in the district where movant seeks to transfer the case? Step 3: apply private and public interest factors Private: Relative ease of access to sources of proof Availability of compulsory process to secure the attendance of witnesses Cost of attendance for willing witnesses All other practical problems that make trial of a case easy, expeditious and inexpensive Public: Administrative difficulties flowing from court congestion The local interest in having localized interests decided at home The familiarity of the forum with the law that will govern the case The avoidance of unnecessary problems of conflict of laws of the application of foreign law Skyhawke Technologies, LLC v. DECA International Corp. (DC – MS – 2011) (Parker): π sued ∆ in federal court in MS for patent infringement on two patents of which it was the assignee (patents were golf course map-related apps), alleging ∆ made and sold their infringing products in MS. Π was LLC w/ PPB in MS, ∆ was CA corp. w/ PPB in CA and a wholly owned subsidiary of Korean corp. ∆ moved to transfer venue to CA under § 1404(a). Venue is proper in Southern District of Mississippi under § 1391(b)(2) b/c a substantial part of the events giving rise the claim occurred there: π claimed ∆ infringed on their patents by marketing and selling products in MS (presumably in that district). Also proper under § 1391(c)(2) b/c π is an entity w/ its PPB in SDMS. And under § 1391(d) b/c MS has multiple districts and since ∆ is a corp, it can also be deemed to reside in the SD since contacts w/ SD would be sufficient to subject it to PJx if SD were a state. Venue is proper in any district in which any ∆ resides as long as all ∆s reside in the same state under § 1391(b)(1) and a ∆ corp is deemed to reside in any district in which it is subject to PJx under § 1391(d). ∆ is a CA corp so resides in CA and subject to PJx in CA if we treat transferee district as state since that district would have general and specific jx over ∆. Private interests: Access to sources of proof: usually most evidence is w/ ∆ in an infringement case so weighs in favor of ∆’s transfer to that location (here, in CA and Korea) but π claims a lot of its evidence is also in MS so on balance this is either neutral or very slightly favors ∆ Compulsory process: MS has subpoena power over party witnesses so only relevant to non-party witnesses in Korea, which neither MS or CA have so essentially neutral. If court cannot compel a witness’s attendance at trial, video depos can be used. Cost of attendance for witnesses: most important private interest—5th circuit established 100 mile rule: when distance b/w existing venue and proposed venue under § 1404(a) is more than 100 miles, factor of inconvenience to witnesses increases in direct relationship to the distance to be traveled. However, when transfer serves to shift inconvenience from one party to another, it does not weigh in favor of movant b/c convenience of all parties should be considered. Either way, witnesses for π and ∆ will have to travel more than 100 miles, and foreign travel is inconvenient if coming to CA or MS (maybe slightly more to MS b/c no direct flights) so only slightly weighs in ∆’s favor. All other practical problems: ∆ just made restatements of the above—this factor neutral Public interests: Administrative difficulties: ∆ argued CA courts had shorter wait and trial times—most speculative factor, only slightly weighs in favor of ∆ Local interest: both π and ∆ employ people and market products in their home states, factor is neutral Familiarity with foreign law: both will apply same federal patent law Conflict of law problems: same § 1406. Cure of Waiver of Defects The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue. As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court. If venue is not proper in the originating court, court can choose to either dismiss or transfer to a district where it could have been brought under §1406(a) “where it could have been brought” is stricter under § 1406(a) b/c no consent allowed –literally must be where case could have been brought (PJx and venue would have been proper) Law to be applied: Diversity cases: substantive law of transferee court Federal question cases: same If court lacks PJx over ∆, standard remedy is to dismiss, but in federal court, under § 1406(a), court lacking venue and PJx can transfer to another federal court in which venue would be proper and process of service could be effected (Goldlawr) A few courts have held that once MTD for lack of PJx has been granted, court can not then order transfer—must be ordered as alternative to dismissal, not an afterthought If venue is proper but PJx is lacking, Goldlawr is technically not available b/c prerequisite for motion under § 1406(a) is that venue is improper—but majority solves by employing § 1404(a) for transfer Others insist on using § 1406(a) Others use § 1631. Transfer to Cure Want of Jurisdiction which was designed to permit transfers when exclusive subject matter jx is lodged in court other than originating court, but was written very broadly so courts have interpreted to allow it to be used whenever court is lacking PJx Summary: if court lacks PJx, can use § 1404(a), § 1406(a) or § 1631 to transfer case to a district in which venue is proper and in which PJx could have been established when suit was originally brought But, substantive law from state of originating court will not travel with the case (really only an exception to § 1404(a) since it never does w/ § 1406(a) or § 1631) Forum Selection Clauses Provision in K under which parties designate appropriate forum in which suits specified in the K may or must be filed “May” = permissive and does not preclude filing suit in other proper venues, just creates possible additional venue beyond those provided by statute “Must” = exclusive and designates the only forum in which suit may be brought—but does not render all other venues “wrong” Clause may identify selected forum by region Ex: any state or federal court in the state of Montana (gives parties state & fed option) Clause may identify specifically Ex: Superior Court of the County of Los Angeles (only one option & not federal) How to determine whether or not clause controls: Lawsuit must fall w/in terms of the clause at issue AND Clause must be enforceable Strong presumption of enforceability Federal question cases follow Bremen standard—objecting party must show either: It would be unreasonable or unjust Clause was invalid due to fraud or overreaching Enforcement would contravene strong public policy of forum in which suit is brought Chosen forum is seriously inconvenient for trial Diversity cases: courts split, some follow Bremen but sometimes follow state law (difference is trivial since state law on this point tends to mirror federal law) Atlantic Marine Const. Co., Inc. v. United States District Court (Sup. Ct. – 2013) (Alito): π (VA corp. w/ PPB in VA) entered into K w/ US Army Corp of Engineers to construct child development center at Ft. Hood in TX then entered in subK w/ J-Crew (TX corp.) to work on project that included forum-selection clause which stated that all disputes b/w parties shall be litigated in the Circuit Court for the City of Norfolk or the USDC for EDVA, Norfolk Div. Dispute about payment arose and J-Crew sued π in Western District of TX invoking court’s diversity jx. Atlantic moved to dismiss under § 1406(a) and 12(b)(3) b/c clause rendered venue in TX “improper” or to transfer to EDVA under § 1404(a). DC denied motions, 5th Circuit affirmed. SCOTUS reversed. Assuming clause is enforceable and applies under circumstances, venue was not improper. Venue can only be improper if it doesn’t satisfy § 1391, and § 1406 (a) and 12(b)(3) can only be used if venue is improper. Forum-selection clause that points to nonfederal venue doesn’t make venue improper under § 1391. Fallback provision of § 1391 ensures that so long as a federal court has PJx over ∆, venue will always lie somewhere. Πs reside in TX and substantial events giving rise to claim took place there so satisfied § 1391(b). Must use doctrine of forum non conveniens to enforce forum selection clause that points to a state forum (but § 1404 is just the codification of that doctrine that changes required dismissal to transfer if satisfied so will be analyzed the same way). Must use § 1404(a) to enforce forum-selection clause, and clause must be given controlling weight in all but the most exceptional cases b/c in almost all but the most unusual cases the interest of justice is served by holding parties to their bargain. Analysis changes in the following ways: Πs choice of forum given no weight π now bears burden of establishing transfer for which parties bargained is unwarranted No private interest arguments—only public interest factors State law does not travel Ides: kind of odd rule b/c witnesses who will be burdened didn’t sign K and now the original court decides if transferee court is too busy b/c private interests aren’t considered Service of Process Overview Purpose: give ∆ adequate notice of the suit through proper SOP Service = procedure by which a court asserts PJx Proper service is a prerequisite for PJx, but does not itself establish PJx Similarly, PJx does not mean you have effectuated proper service Sometimes, both run together (e.g., when you have transient personal jx and serve someone properly within the state at the same time) Service must comply with the relevant rule/statute and comport with due process Means you have provided the opposing party with a summons & complaint Mere fact that ∆ received actual notice will not suffice to uphold validity of service that was effected contrary to the law The Formalities of Service Summary of Rule 4 (a) – (e), (h) & (m) Service = summons w/ copy of complaint π is responsible for completing w/in 120 days from filing complaint (if ∆ is in US) or court must dismiss complaint w/o prejudice Court can order service w/in specified time or may grant extension if π shows good cause or for other equitable relief (but if complaint is dismissed and state does not have a “saving statute” to extend SOL or dismissal is for failure to effect timely service, π may be barred from re-filing) How to Get Summons: Π presents summons to clerk when filing complaint (or after) and if it is proper, clerk must sign, seal and issue to π to serve on ∆ (or copies for multiple ∆s) If it is not proper, court can allow π to amend Contents of summons: Name of ct & parties Be directed to ∆ Name & address of π’s atty (or π if unrepresented) State time ∆ has to appear & defend Notify ∆ failure to appear & defend = default judgment on complaint Signed by clerk Have court’s seal Who can serve: anyone not a party over the age of 18 can serve (π responsible for giving necessary copies of docs) or π can request court to appoint someone to serve (US marshal, etc.) Court must appoint someone if π is not liable for costs of suit under § 1915 (in forma pauperis) or § 1916 (seaman) How to serve: Individuals: unless ∆ is minor, incompetent or waiver filed, service can be made However state law allows By personal service Posted service at dwelling or usual place of abode On authorized agent to receive SOP Domestic or Foreign Corp, Partnership, Assn: unless fed law provides otherwise If served in jud’l district of US However state law allows for individual On authorized agent (and if agent is authorized by statute, and statute requires, by mailing in addition) If serving abroad, any manner allowed by Rule 4(f) (ex: if covered by Hague Convention, thru Central Authority, or if no federal treaty or agreement applies, by borrowing law of foreign country where service suggested), except personal service Waiver: ∆ has duty to avoid unnecessary expenses of serving summons so π can notify ∆ of suit and request that ∆ waive service but notice must be: In writing Addressed to individual ∆, or to authorized agent to receive SOP if ∆ is business Include name of court, copy of complaint, 2 copies of waiver, prepaid means to return Inform ∆ using Form 5 of consequences of waiving and not waiving service State date request sent & give ∆ 30 days (60 if not in US) to return Sent by 1st class mail or other reliable means Effect of not returning waiver: If π & ∆ are in US, court must impose service expenses & expenses (incl. atty fees) for motion required to collect those service expenses on ∆ Effect of returning waiver: If returned w/in 30 days (60 if not in US) and ∆ is not served before, ∆ has 60 days (90 if not in US) from date request was sent to file answer Returning waiver does not waive objections to PJx or venue When π files waiver, serves as POS Rule 4. Summons Contents; Amendments. Contents. A summons must: name the court and the parties; be directed to the ∆; state the name and address of the π’s attorney or—if unrepresented—of the π; state the time within which the ∆ must appear and defend; notify the ∆ that a failure to appear and defend will result in a default judgment against the ∆ for the relief demanded in the complaint; be signed by the clerk; and bear the court’s seal. Amendments. The court may permit a summons to be amended. Issuance. On or after filing the complaint, the π may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the π for service on the ∆. A summons—or a copy of a summons that is addressed to multiple ∆s—must be issued for each ∆ to be served. Service. In General. A summons must be served with a copy of the complaint. The π is responsible for having the summons and complaint served w/in the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. By a Marshall or Someone Specially Appointed. At the π’s request, the court may order that service be made by a United States marshal or deputy marshal or by a personal specially appointed by the court. The court must so order if the π is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. Waiving Service. Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The π may notify such a ∆ that an action has been commenced and request that the ∆ waive service of a summons. The notice and request must: be in writing and be addressed: (i) to the individual ∆; or (ii) for a ∆ subject to service under Rule 4(h), to an officer, or managing or general agent, or any other agent authorized by appointment or by law to receive SOP; name the court where the complaint was filed; be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form; inform the ∆, using text prescribed in Form 5, of the consequences of waiving and not waiving service; state the date when the request is sent; give the ∆ a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the ∆ outside any judicial district of the U.S.—to return the waiver; and be sent by first-class mail or other reliable means. Failure to Waive. If a ∆ located w/in the U.S. failed, w/o good cause, to sign and return a waiver requested by a π located w/in the U.S., the court must impose on the ∆: the expenses later incurred in making service; and the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses. Time to Answer After a Waiver. A ∆ who, before being served w/ process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the ∆ outside any judicial district of the U.S. Results of Filing a Waiver. When the π files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver. Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jx or to venue. 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 U.S. by: following state law for serving a summons in an action brought in courts of general jx in the state where the DC is located or where service is made; or doing any of the following: delivering a copy of the summons and of the complaint to the individual personally; leaving a copy of each at the individual’s dwelling or usual place of abode w/ someone of suitable age and discretion who resides there; or delivering a copy of each to an agent authorized by appointment or by law to receive SOP. Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the ∆’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: in a judicial district of the U.S.: in the manner prescribed by Rule 4(e)(1) for serving an individual; or by delivering a copy of the summons & complaint to an office, a managing or general agent, or any other agent authorized by appointment at a place not w/in any judicial district of the U.S., in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). Time Limit for Service. If a ∆ is not served w/in 120 days after the complaint is filed, the court—on motion or on its own after notice to the π—must dismiss the action w/o prejudice against that ∆ or order that service be made w/in a specified time. But if the π shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). Notes Substantial Compliance: liberal approach—courts accept “substantial compliance” of Rule 4 rather than demanding strict adherence to technicalities Court must distinguish b/w complete disregard for Rule 4 or technical errors If service was made under one of Rule 4 provisions allowing federal courts to borrow state service rules, must ascertain whether state in question accepts substantial compliance Factors: Procedural posture of case Type of service involved Whether π made reasonable, good faith mistake Whether ∆ was evading service Whether relevant service provision is inherently ambiguous (“usual place of abode”) Whether justice would be served by a relaxed construction Danger re Waiver: when SOL is tolled only by service (or filing waiver in place of service), ∆ can run out clock by refusing to waive if SOL time limit is running out since π will have to attempt formal service if waiver not returned In such a case, it is a mistake for π to seek a waiver b/c ∆’s receipt of request for waiver w/ notice of suit does not constitute proper service, even if state service rule authorizes service by mail 4(d) is a two step process—first requesting waiver, then effecting formal service if unsuccessful Character of ∆ controls means of service available Minors, incompetents, the U.S., its agencies & officers, foreign states, state & local govt must be served formally (can’t use waiver under 4(d)) Rule 4(f) & (g) define highly specialized & flexible procedures for serving ∆s in foreign countries (individual, corp, partnership & assns.) If covered by a federal treaty or agreement, such as Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, those procedures must be employed Nations signing Hague Convention agree to designate a Central Authority to receive & transmit requests for service coming from other nations, then certify service has been made If no federal treaty or agreement applies, courts borrow law of country in which service is effected, follow procedures suggested by that foreign country, or employ any other method not prohibited by foreign/international law, like personal service Courts often flexible in deciding if person qualifies as a “managerial or general agent” but person must be sufficiently connected w/ company’s operations to render it likely that service on that individual will provide notice to the ∆ American Institute of Certified Public Accountants v. Affinity Card, Inc. (SDNY – 1998): ∆ shared offices w/ 3 other companies—all which were partially owned by Miller, also president and treasurer of all 4 companies, and all had common receptionist area. Π claimed that process server (Murphy) handed summons & complaint in sealed envelope to McDonald, who identified himself as Asst. VP, said he could accept papers & would make sure Miller received them. McDonald placed sealed, unopened envelope in Miller’s box. ∆ never answered complaint & court entered default judgment for π. ∆ filed motion to vacate judgment under Rules 55(c) & 60(b)(4) as void for lack of personal jx due to ineffective SOP. ∆’s version of events were slightly different from π’s When court is faced w/ equally reliable but conflicting accounts, court should resolve any doubts of jurisdictional question, like sufficiency of process, in favor of party seeking relief under Rule 60(b) Also, courts give preference for resolution on the merits, not for default judgment McDonald was neither employed nor expressly authorized to accept service on behalf of ∆, and not sufficiently integrated with ∆ to allow inference that he had authority to receive service. Therefore, service was not proper under federal rules, NY law or MA law. Court granted ∆’s motions, however under Rule 60(b), court may grant relief “upon such terms as are just,” and, in light of π’s good faith belief that service had been properly effected, court conditioned vacatur upon ∆’s agreement to accept service on its attorney w/in 7 days of order. Due Process Right to Notice: method of service must comply w/ relevant statute and satisfy Due Process Clause of 5th or 14th Amendment: Directory: wp-content -> uploads -> 2015 2015 -> Police Militarization 2015 -> 2015 ihbb championships: hs history Bowl Round 4 – Prelims First Quarter 2015 -> Wrtp/big step · 3841 W. 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