The Lawletter Vol 41 No 11
"Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.
In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the paper to . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party). In turn, the statute defines "mailing" as the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state[.]
In Feldman v. Samcore Associates, LLC, Index No. 27582/07 (N.Y. Sup. Ct. Suffolk County Aug. 4, 2016), the plaintiff sought to refile a voluntarily dismissed complaint on the final day of the applicable limitations period. The trial court dismissed the case, reasoning as follows:
Here, an affirmation of service from plaintiff's attorney states that he served the motion papers upon the attorneys for the defendant . . . "by United States Mail, in sealed envelopes, postage paid, addressed as aforesaid." Because plaintiff's attorney does not state that he deposited the papers "in a post office or official depository under the exclusive care and custody of the United States Postal Service" his affirmation does not raise a presumption that proper mailing occurred.
Most people would assume that the only possible way to send the papers "by United States Mail" necessarily includes depositing the papers into the "care and custody of the United States Postal Service." However, the trial court strictly construed C.P.L.R. 2013 and bounced the case. See id. (citing by contrast Ortega v. Trefz, 44 A.D.3d 916, 917, 845 N.Y.S.2d 73, 74 (2d Dep't 2007) ("Here, the defendants submitted a notarized affidavit of service . . . attesting that she mailed the motion papers on May 9, 2006, by depositing them 'in an official depository under the exclusive care and custody of the United States Postal Service,' thus raising a presumption of proper mailing.")).
In Georgia, the typical means of serving process is "to the defendant personally." Ga. Code Ann. § 9-11-4(e)(7). In Space Coast Credit Union v. Groce, 785 S.E.2d 663 (Ga. Ct. App. 2016), the service affidavit stated that the defendant was asleep in his bed at a nursing home and thus "unable to take the papers," so the process server "put the papers on a table next to the bed." Id. at 665. The defendant defaulted and the trial court denied the plaintiff's summary judgment motion on the ground that the defendant was not properly served, therefore depriving the court of personal jurisdiction over the defendant. See id.
On appeal, the court "found no Georgia authority, and [the appellant] cited none, addressing directly whether leaving papers next to a person who is asleep or is otherwise unaware of the delivery amounts to 'delivering' a summons 'personally' as those terms are used in OCGA § 9-11-4(e)(7)." Id. at 666. Strictly construing those words, the appellate court reasoned that because the party involved was "an elderly, dozing defendant unaware of the process server's efforts," id., the concern was that the defendant "might not have noticed the papers for some period of time, if ever[, or that a] nurse or housekeeper might have thrown the papers away." Id. at 667. Therefore, the Court of Appeals of Georgia held, as a matter of first impression, that serving a defendant at a nursing home by leaving papers on a table next to the bed where the defendant was sleeping did not comply with the obligation to deliver a copy of summons personally as required by Georgia Code § 9-11-4(e)(7).
Thus, practitioners should take great care to ensure that they dot every "i" and cross every "t" when attempting to serve process, see Groce, and should carry over that attention to detail when providing proof of service, see Feldman.