• February 19, 2016
Service of Tennis Ball, 2012 French Open : Agnieszka Radwanska (POL) def. Venus Williams (USA)

Service of Tennis Ball, 2012 French Open : Agnieszka Radwanska (POL) def. Venus Williams (USA)

Update (February 19, 2016): The decision this week in favor of Plaintiff DeCook was a win for “the little guy” and a win for justice and fairness in my opinion. Note that the case was a very close call, with three justices dissenting in part. The dissenting justices might disagree that the result was a win for justice as far as the defendants in the case were concerned and as far as the “rule of law” (as opposed to some vague notion of “fairness”) is concerned.

The take-away for Minnesota civil litigators, and, in particular, those representing plaintiffs, is that the DeCook’s lawyers dodged a bullet (and paid a hefty price, having to take the issue all the way to the Minnesota Supreme Court). The sounder approach is to follow the rules for service of the summons and complaint in civil litigation with extreme care so you never have to face challenges for “sufficiency of process.”

Original post (July 29, 2015)Last month, Minnesota Litigator noted the Supreme Court is taking up a “service of process” (“SOP”) issue in a case where an adult son in a residence to be foreclosed received the summons and complaint and the question to be answered was whether this was sufficient SOP for “dad” to be bound by the foreclosure proceeding on the property. “Dad” claimed that his son did not “reside” in the property and that he, Dad, was unaware of the foreclosure, and that he, Dad, could not be considered to have have been “served process” by virtue of the fact that his adult son was handed the summons and complaint while at the residence in foreclosure.

How about where a lawyer contacts a hospital’s “Risk Management Department,” asks to be directed to a person authorized to accept service of process of a lawsuit against various physicians and other care providers, and the person at the hospital says that she is authorized to accept service?

But she’s not. She’s not authorized to accept service for the hospital itself, much less the named doctors and nurses…The Minnesota Supreme Court has now taken up another case in which the Court will focus on “sufficiency” of “service of process.” (There were also other problems with SOP in DeCook, which you can read about if you like here.)

(1) Should courts adopt a bright-line rule and make plaintiffs (or plaintiffs’ lawyers?) follow SOP requirements to a “T”?

(2) What if the consequences of a defective SOP are that the allegedly injured plaintiff is left high and dry if the case is dismissed for insufficient SOP (that is, time ran out to bring the suit again with proper service (tripped up by the statute of limitation bar))?

(3) What if the actual defendants had actual knowledge of the lawsuit all along? Is that relevant? What if they say they did not have actual knowledge but the plaintiff has reason to believe they are lying?

I tend to have a particular personal bias favoring substance over form, of  requiring “substantial compliance” rather than “strict compliance,” of having cases decided on the merits rather than being thrown out “on technicalities.” On the other hand, if a client of mine would benefit from strict application of a rule that would gut an adversary’s claim on “technical grounds,” I would not hesitate to advocate in favor of such an application. That is simply what advocates do. Some might even consider that, in a sense, a fringe benefit of advocacy: advocates do not have to know what is best in some broad socio-legal sense. They can (and should) focus on what is best for their clients. Courts and judges, on the other hand, have the harder job of calling the shots “in” or “out.”tennis-614181_1280




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