Service of process is a thankless task. Ever received a card from a client grateful for your masterful perfection of service? Never happens. But make a mis-step—and you will hear from the client. Or end up on the news—and not in a good way.
A case based on bad service of process is like a city built on a volcano. Sooner or later you have to vacate.
No service—no jurisdiction. It’s a void order.
You may recall Hamilton v. Johnson, a recent opinion by the North Carolina Court of Appeal. The Court vacated a cluster of orders from an over a year-long (and order-intensive) suit by a Mecklenburg resident Carla Hamilton. Carla sued a Texan for child custody and support. She tried to serve Texan Lateef Johnson by FedEx. She mailed the package to his apartment building, and the package was accepted and signed for by “an individual identified as ‘KKPOINI.’” Despite obvious lack of a direct familial relation between the Johnsons and the KKPOINIs (sounds to me like an Italian name maybe?), North Carolina plaintiff Carla Hamilton had an excellent run in her home state.
Carla persuaded North Carolina Judge Christy Mann that KKPOINI’s signature was good enough for the finding that Mr. Johnson was “properly served.” The Texan never stepped foot into the courtroom during the year when Mecklenburg Court entered a $2,050 per month child support order, held him in contempt, and ultimately ordered him arrested and jailed in Texas, extradited to Mecklenburg county, and jailed here until he paid $15,200 in child support arrears.
Vacating all of the trial court’s orders, the Court of Appeals reminded that the North Carolina law no longer contains a presumption of valid service on a natural person (unless we are talking about the default judgement). The burden of proving service is on the plaintiff—reminded the Court—and KKPOINI’s signature just did not cut it for the Rule 4(j)(1)(d) requirement of “delivering to the addressee.” At the end of the day, nobody could actually tell with certainty who or what KKPOINI was and when or whether he/she/it actually handed the summons and complaint to Mr. Johnson. All of the orders in the case with bad service were void orders.
Earlier this month, the Court issued another opinion further disambiguating the meaning of the “delivering to the addressee” requirement of Rule 4(j)(1)(d).
In Washington et al v. Cline et al, the plaintiff tried to serve eight individual defendant by FedEx. The FedEx delivered all eight packages to somebody other than the addressee.
If you are a law school professor in need of a quick first year civil procedure exam pattern, look no further than Washington. Here is what happened.
- FedEx delivered the package to Defendant-1’s residence but handed it to the visiting twelve-year-old grandson who was playing in his front yard. The child went inside and handed the package to Defendant-1.
- FedEx delivered the package to Defendant-2’s residence and left it on the doorstep. Defendant 2 found the package there when she returned home that evening.
- FedEx left the packages for Defendants 3 through 8 at the “loading dock” of the City’s Police Department with the employee of the City’s Police Department who was “responsible for receiving materials and supplies delivered to the Police Department for use in its operations.” Defendants 3 and 4 were former employees of the Police Department, but no longer employed when the packages came for them. Defendants 5,6,7, and 8 were still employed.
All eight defendants filed affidavits admitting that they received their packages, but nevertheless asserting insufficient service of process: FedEx did not personally hand them the packages, as required by the statute.
The Court disagreed. Interpreting Rule 4(j)(1)(d) together with the “in fact received” language of N.C. Gen. Stat. § 1-75.10 (a)(5)(b), the Court concluded that the legislature did not have in mind allowing defendants to play “gotcha” when they “in fact received” the packages. Just because a twelve-year old grabbed the package from the FedEx guy and handed it to grandpa, does not make delivery defective. Here is the ‘quotable quote’ from the Washington opinion:
… the critical inquiry is whether addressee received the summons and complaint, not who physically handed [them] to the addressee.
The Court rejected defendant’s interpretation that “a designated delivery service agent could hand a copy of summons and complaint to addressee’s spouse, at his domicile, while he was in the next room, and still be insufficient without personal delivery to the addressee or his service agent” as “contravening the express legislative intent codified in 1-75.1”
Note that, absent defendants’ affidavits flaunting their receipt of the packages, the matter would have most likely been decided differently.