The law of yelling at process servers

The process server’s affidavit in Norris v. Causey said that (1) the defendant’s wife “yelled through the door that she would not accept service, and (2) he then posted the summons and complaint on the defendant’s door. The affidavit did not say, however, that these events occurred on the same day, which led to a remand for additional fact-finding by the district court: “It turns out that whether the yelling and posting happened the same day matters a great deal. Leaving a summons and complaint at a residence door, unaccompanied by a refusal to accept service, is not effective service under Rule 4. . . .   This means that if Garry’s wife was not present, let alone refusing service, on the day the process server posted the documents on the door, Garry’s service was likely defective. On the other hand, a defendant’s refusal to accept service is not rewarded when the process server announces the nature of the documents and leaves them in close proximity to the defiant defendant.” No. 16-30339 (Aug. 22, 2017).

He that dies pays all debts.

Breaux sued ASC Industries for age discrimination, but died before the case resolved. Her attorney, Oglesby, filed a “suggestion of death” pursuant to Fed. R. Civ. P. 25.  ASC then obtained dismissal when the 90-day period set by that rule passed with no substitution. Breaux’s estate then sought reinstatement, pointing out that the estate representative had not been personally served pursuant to Fed. R. Civ. P. 4 (Rule 25 provides that: “A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.”)  ASC countered that Oglesby also represented the estate. The Fifth Circuit sided with Breaux’s estate, finding that a personal representative is a nonparty under Rule 25, noting that is the majority position among Circuits, and distinguishing other cases that reached arguably inconsistent conclusions. Sampson v. ASC Industries, 14-10085 (March 13, 2015, unpublished).

Fault for default v. faulty default

Scott v. Carpanzano affirmed two default judgments and vacated a third, applying the basic federal standard: “whether the defendant willfully defaulted, whether a meritorious defense is presented, and whether setting aside the default judgment would prejudice the plaintiff.”  No. 13-10096 (Jan. 24, 2014, unpublished).  Footnote 3 notes that the standards under Rule 60(b)(1) and Rule 55 may diverge after a 2007 stylistic revision to Rule 55,  but concludes they have not yet and did not on the facts of this case.

No place like home

The plaintiff served its suit on a guaranty obligation by using the Texas longarm statute, which requires that the plaintiff provide the Texas Secretary of State with the defendant’s “home or home office address.”  Tex. Civ. Prac. & Rem. Code §§ 17.044(a), 17.045(a).  The defendants in Moody National Bank v. Bywater Marine alleged that the plaintiff had only served a “mailing address,” but the Fifth Circuit disagreed, holding that service on the address specified in the parties’ contract for service of process satisfied the statute.  No. 12-40946 (May 14, 2013, unpublished) (citing Mahon v. Caldwell, Haddad, Skaggs, Inc., 783 S.W.2d 769, 771 (Tex. App. — Fort Worth 1990, no writ)).

Service overseas

The plaintiff in Lozano v. Bosdet did not serve a British defendant within the 120 days of Fed. R. Civ. P. 4, or a later extension by the district court.  No. 11-60737 (Aug. 31, 2012).  The Fifth Circuit, noting “that statutory interpretation is a ‘holistic endeavor,'” applied a “flexible due-diligence” standard to find that dismissal was not warranted, especially since a refiled suit would likely be time-barred.  Id. at 7, 9.  The Court aligned itself with the Seventh Circuit and rejected different readings of Rule 4(f) in the international context by the Ninth Circuit (unlimited time) and Second Circuit (120-day limit excused only if service is attempted in the foreign country), noting that it did not wish to require “immediate resort to the Hague Convention or other international methods.”  Id. at 5-6.