• July 14, 2011

As all lawyers should know, at least as far as civil litigation is concerned, it takes a minimum of three to tango.  One needs a plaintiff, a defendant, and a forum (a court, an arbitration panel, a mediator, etc.).

And a core element of the adversary system is, of course, “due process,” — wherever and whenever possible under our system, litigants should receive “notice and opportunity to be heard.”

Most of the time, most litigators understand that notice to the opposing side is a critical step in any court action.  Where counsel may trip up, however, is where it is important to tell the Court that one has given notice to one’s adversary.  In short:  do not forget to file the affidavit of service of process with the Court.  The alternative can be inconvenient at best or quite a problem at worst.

Plaintiff’s counsel for Country Inns & Suites by Carlson, Inc. sued three defendants.  Unfortunately, they did not file their affidavits of service with the Court on the two of the three defendants that they were able to serve within the 120 days provided by Rule 4 of the Federal Rules of Civil Procedure.

Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) dismissed the entire case.

Fortunately for plaintiff, Judge Magnuson granted plaintiff’s motion to vacate the dismissal so, in the end, “no harm, no foul.”  On the other hand, this unfortunate snafu perhaps could have been avoided.

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