Friday, March 14, 2008

The Unpleasantries of Service of Process

How do you obtain personal jurisdiction over a defendant in a copyright case? Personal jurisdiction is, in federal question cases such as copyright, intertwined with service of process. A suit for copyright infringement is instituted by the filing of a complaint with the clerk of the district court and serving a copy of the complaint along with a summons on the defendant. Facially, FRCP 4 does not directly deal with personal jurisdiction, only service of process, and with the exception of FRCP 4(k)(2), valid service of process does not necessarily ensure that the court may exercise in personam jurisdiction over a defendant.

While FRCP 4(k)(1)(D) states that service of a summons is effective to establish personal jurisdiction when authorized by a federal statute, the Copyright Act (like many federal statutes) does not specify the manner of service of process. This lack of specification has been construed as precluding nationwide service of process. As a result, FRCP 4(e)(1) requires that service must be effected in any federal district “pursuant to the law of the state in which the district is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State.” It is thus the provisions of state law that govern.


In the case of corporations, FRCP 4(h) takes the same approach, permitting service of process in the manner prescribed for individuals, or, by delivering a copy of the complaint and summons to an officer, managing or general agent, an agent authorized by law to accept service including if the statute says so by mail. FRCP 4(m) adds that if you don’t effectuate service of process in the right way within 120 days after the complaint was filed with the clerk of the court, your complaint can be dismissed (without prejudice). The without prejudice part is not so lenient as it may seem because some plaintiffs wait right before the expiration of the statute of limitations to file, and thus if the complaint is later dismissed for failure to effectuate a valid service of process, a dismissal without prejudice will, as a practical mater, be a dismissal with prejudice. The lesson obviously is file with enough time to refile within the limitations period.

In Prunte v. Universal Music Group et al, 2008 WL 647546 (D.D.C March 11, 2008), a pro se plaintiff learned the hard way that serving corporate agents requires diligence. Plaintiff had attempted to serve Viacom International, Inc. by delivering the complaint and summons to a “Process Specialist” at Spiegel & Ulterra, thinking that Spiegel was the registered agent for Viacom International, Inc. It wasn’t. Spiegel is the registered agent for Viacom Communictions Group, which the court found is not affiliated with Viacom International, Inc. Viacom International, Inc. does have a registered agent for service of process, the Corporation Service company, but that company was not served. The error apparently came when plaintiff looked at the online directory for New York State but failed to see a separate entry for the Viacom Communications Group.

Since plaintiff turns out to be an “experienced federal court litigator,” having filed many pro se complaints, the court cut him no slack.

3 comments:

Bruce Boyden said...

If you're not in a hurry, get a process waiver under Rule 4(d). Of course, that doesn't help you if you address it to the wrong agent, but if you can't figure out who the agent is you can also address it to an officer.

Tal Benschar said...

Here is a tip:

In New York, any corporation that is either a New York corporation or qualified to do business in NY can be served under NY Business and Corporations Law Section 306 by serving the Secretary of State. No need to try to serve the officers or registered agent first. There is an office in Albany where, I am told, a Clerk is waiting all day to accept process. There are numerous process servers in Albany who are happy to do the job for you for very little. (I did this two weeks ago. Process server charged $28, plus a $40 statutory fee charged by the Secty. of State.)

If the corporation is NOT qualified to do business in NY, you can still serve it through the Secty of State under NY Business and Corporations Law Section 307 (assuming it is subject to jurisdiction in NY). But that statute is more complex -- requires you to mail the Summons and Complaint to the defendant corporation and file proof of service within a specified time.

Not all states are so liberal in allowing such service, BTW. CA only allows Secty of State service if you tried a few times and could not serve the papers, plus you need a Court order allowing such service.

William Patry said...

Thanks, Tal for the excellent tip.I think plaintiff's error here was in naming the wrong corporation to be served.