As the coronavirus pandemic continues to infect people across our nation and our governments try to stop the spread, the legal profession keeps getting pushed into uncharted waters. One legal issue that still remains unclear is how service of process will be affected not just for those trying to serve others, but those parties who are being served with lawsuits.

 

Below are some useful tips on how to serve, and how to be served, legal documents during these uncertain times in the midst of the pandemic.

 

For those concerned about serving others:

 

In order to make sure that legal papers are properly and timely served on defendants:

 

  • Check all standing orders, temporary rules, or other guidance from the jurisdiction where service is to take place as new orders are issued almost daily;
  • Monitor the websites and public postings of defendants to be served to have up-to-date information about where service is being accepted since most businesses have had to adjust and service locations may have changed;
  • Ensure that your process server does not leave the legal documents outside of physical offices or with unauthorized personnel as service would not be proper;
  • Be flexible with the defendant to be served when it comes to agreeing to serve via alternate methods that are accepted under the state and federal rules.

For those concerned about receipt of service:

In order to make sure that a defendant is not refusing service in a way that would trigger another service method that could result in lost legal documents:

  • Use a service to act as your registered agent, if you have not done so already, as now is a good time to benefit from these services;
  • Review and confirm that the list of statutory agents registered in each state is up-to-date;
  • Contact your registered agent to make sure there is a process in place to accept service on your behalf—especially in light of all the court orders on the issue;
  • If you cannot accept service at any physical location where a process server may attempt service, post a notice on the door with detailed information, post a list of office that are closed due to coronavirus and cannot accept service on the internet, establish a procedure for routing and reviewing legal documents is service is made on someone at one of those addresses.
  • Make sure there is a procedure for reviewing and routing all mail received by the legal department and its staff, so you do not miss any papers served by FedEx or certified mail.
  • Continue to monitor new court filings to catch lawsuits where plaintiffs argue that service was perfected but the legal documents were lost or misdirected.
  • When possible and desirable, reach out to the plaintiff and offer to waive or accept service via an alternative method.

If parties implement the above tips, the legal process will continue to run as smoothly as possible, considering we are in the midst of a global pandemic.

 

While sometimes the hardest part of serving a defendant to a lawsuit is locating them, sometimes the person is found but outright refuses to accept service. Although not the most ideal way to serve a lawsuit, below are some examples of real-life cases in which the process server had to get creative in order to effectively serve the defendant.

 

Interesting Cases

 

Placing the papers near the defendant, by “drop service.” A process server tried six different times to personally serve the defendant at his residence in Stafford v. Mach (1st Dist. 1998). Although Mach answered the door, he did not identify himself. Instead, when the process server asked for him, Mach started asking questions, said he had never heard of the person being served, refused to provide identification, and threatened to call the police. The process server announced “drop service,” leaving the papers with Mach and noted serving a “John Doe” with a detailed description on the proof of service. The server also mailed the summons and complaint to Mach at the same home address. This method is called “drop service” because the server literally drops the papers in front of the defendant and their door, making service proper even if the defendant refuses to pick up the papers.The court found service to be valid.

 

Tossing papers on a nearby table in the presence of a staff person. In this case, Ludka v. Memory Magnetics Int’l (2nd Dist. 1972), the process server went to the defendant’s offices and asked to see the president but was told he was not there. Unable to speak with another officer of the defendant corporation, the server tossed the papers on a coffee table near a receptionist and announced service. The server also mailed the summons and complaint to the defendant corporation. The corporation’s president declared the receptionist was not employed by the corporation, nor was she an agent for the process of service because his office was on the other side of the building. The court held service was sufficiently valid.

 

Putting papers under a windshield wiper of a car. Service was found to be proper when the legal papers were placed under the windshield wiper after the defendant locked himself in the vehicle. In the case, Trujillo v. Trujillo (3rd Dist. 1945), the process server explained to the defendant what the documents were while the car window was open. The defendant, however, refused to accept them and rolled up the window. The defendant then tried to dislodge the papers by starting the windshield wiper, but they did not fall until after he started to drive away. The court found that service was proper.

 

We can Provide Your Service Process Needs

 

As can be seen, serving a lawsuit upon a defendant is not always easy. Ancillary Legal can help you with all of your process of service needs. You do not want your suit dismissed due to improper service. Contact us today.

Since our announcement, late last year regarding our new international deposition services, many of you may be curious about just how we accomplish depositions abroad. Here we will describe a few of the tools we use. The main obstacle when undertaking a deposition abroad is the distance.

Bridging the Distance

While you could fly halfway across the world to take down a deposition, this on top of the transcript fees could wind up being quite costly for your client. Enter Video Conferencing! Taking a nod from our sister company, who has embraced video conferencing for US depositions for a number of years now, Ancillary utilizes video conferencing to shorten the distance between deponent and attorney in an affordable way. Ancillary’s extensive knowledge of foreign and domestic laws allow us to properly advise you as to whether your deposition can take advantage of this modern technology.

Handling Exhibits

Now, you may be thinking “I can’t do a video conference deposition. I have exhibits that I need to use!” Not a problem. You can share those exhibits right inside of your video conference in real time with the help of screen sharing. We have even prepared a means for you to digitally mark those exhibits either in real time, or prior to your deposition using Adobe Stamps!

You can download our free template from  ALC’s google drive. Just extract the pdf in the zipped folder and put it in your relative folder to:

C:\Users\[YOUR USER NAME]\AppData\Roaming\Adobe\Acrobat\DC\Stamps

Once the file has been placed there, the stamps will appear in in your Adobe software under the stamps menu in a list named “Ancillary Legal Corporation.”

These stamps will work in both Adobe Acrobat Reader DC and Pro DC. If you do not yet have Adobe software you can download the software from their official download page.

Taking it to the Next Level

If you are an Adobe Acrobat Pro user, you can take advantage of the included feature called “Prepare Form” to customize our exhibit stamp template. Ancillary was easily able to use this feature to prepare a multitude of custom stamps for our Atlanta-based sister company, Elizabeth Gallo Court Reporting’s  many court reporters to utilize during the COVID-19 outbreak.  This feature is easy to use, and can offer you individualized functionality for your stamps.  In this YouTube video, a litigation technology firm explains how you can even use Adobe’s “Prepare Form” to program digital exhibit stamps to automatically fill with the file name for your pdf!

These are just a few of the tools Ancillary has at their disposal to assist you with you with your international deposition. Click here for your free consultation. Ancillary’s staff attorney will review your case and let you know your option for depositions abroad.

When a lawsuit is initiated by a plaintiff against a defendant, the latter must be “served” with the proper documents regarding the legal action. Typically, these documents are served in person; in other words, they are hand-delivered to the defendant. Sometimes, however, the defendant in a lawsuit cannot be found to accept delivery of legal documents. In such a scenario, the federal and state rules of civil procedure allow for an alternative method of service via publication.

How Does Service by Publication Work?

The process of service that is done by publication may be allowed by a judge’s order. Publication refers to the actual official notification of the defendant by publishing the lawsuit in a newspaper. Not surprisingly, service of process by notice of publication must meet certain legislated guidelines regarding process and format.

Service by publication occurs when a summons or other legal document relating to a lawsuit is served by publishing the documents in a general-circulation newspaper. The act of publishing these legal documents gives the defendant “constructive notice.” This is used when the defendant is unknown, intentionally avoiding personal service, or is in hiding. “Constructive notice” includes the assumption that the intended person receives the notice despite it not being delivered in-person. This service of process is only permitted by a judge’s order and after a sworn declaration has been provided to the court affirming a failure to locate the defendant after exercising due diligence. As a result, the court will accept publication as effective service regardless of whether or not the defendant reads the published notice.

Types of Service of Process

There are three general methods of effectuating service of process on a defendant who is party to a legal action. These include:

  • Personal service,
  • Substituted service, and
  • Service by publication.

Personal service of process happens when the legal documents are provided directly to the person or entity named on the summons, complaint, or petition. Most domestic lawsuits require personal service to establish the defendant was properly served. Substituted service, on the other hand, occurs when the process server is able to serve the named party indirectly. This may include giving documents to another court-approved person–whether family or a friend–or by sending it by mail or dropping it off at the defendant’s place of work.

The best first step is to hire a professional process server company to effectuate personal or substituted service. This is because these companies and the process servers they use are specifically trained to locate and serve legal documents on hard-to-find individuals. Once a process server is unable to locate a defendant, the next step is to request a court allow service by publication.

We can Help

Ancillary Legal can help you with all of your process of service needs, particularly if it has to do with international lawsuits. Filing a legal claim that has international implications is complicated. You do not want your suit dismissed due to improper service. Contact us today to handle all of your service processing needs.

Those who are involved in service of process have difficult work to do. Process servers bear the task of delivering important court documents to individuals and/or entities. Failure to do so properly can ruin a case, particularly if the statute of limitations deadline is near. Many people who are being served with court papers, whether a complaint and summons or subpoena to appear or produce documents, have misconceptions of service of process and as a result challenge delivery. For this reason, it is critical for process servers to be familiar with the governing rules to ensure proper service.

Know the Rules

A process server must know the rules governing service of process. This includes reviewing federal, state, and local laws. Doing so helps the process server to properly meet the needs of the individual(s) being served, the client, and the courts without running afoul of the rules.

Below are several tips all process servers should follow when doing their job to avoid being sued or failing to properly serve.

  • Jurisdiction Matters: Do not Guess the Laws and Rules. To make things even more complicated, each state has its own set of rules, governing laws, and general practices when it comes to service of process. Notably, there are rules that govern how service can be made, days when service is barred, who is allowed to accept service, and other details. If a service process has to cross state lines to attempt to serve someone, it is critical that he or she check the rules in the new state as there may be important differences;
  • Be Sure to Keep Far from the Mailbox. While it is not an actual crime to notice an address that is posted on the side of a mailbox, that is basically as far as a service processor can go. In short, anything else having to do with mailboxes is off limits when it comes to proper service of process. Keep in mind that tampering with another’s mail remains a federal crime. For more information on laws governing the postal code, visit 18 U.S. Code  § 1708;
  • Do Not Act or Disguise Yourself. It is no secret that delivering court documents is a serious matter. That being said, sometimes service processors are forced to take extreme measures in order to reach and properly serve the individual. While creativity in doing so is allowed, a process server should not be deceitful. This is particularly dangerous when he or she pretends to be a police officer or government official as doing so is against the law;
  • Do Not Enter a Place Until Invited. Common sense should dictate that a service processor should not enter a home or property unless and until he or she is invited in. Trespassing, which is entering another’s property without permission, is against the law. So, even if the service processor knows the person is home and not responding, he or she should not try to go inside the property.

While process servers generally work with respect for those whom they are serving with court papers and also with professionalism and integrity when reporting back to a client, doing the work is not easy. Indeed, process servers often have to go to great lengths to serve the documents upon a party. For this reason, sometimes service processors are walking a fine line between complying with the law and breaking the law in order to serve someone.

The U.S. Court of Appeals for the Federal Circuit recently considered the validity of a $600,000.00 fee award, according to the American Bar Association (ABA) Journal. Under 35 U.S.C. § 285, the prevailing party in a patent infringement action may recover reasonable attorney’s fees in “exceptional cases.”

The Case at Hand:

In Drop Stop LLC v. Zhu, the company owned a patent for a product preventing items in a car from falling between the front seat and the center console. Drop Stop sent a cease-and-desist letter to the defendants to stop selling a product similar to theirs and alleging copyright infringement. The defendants refused to comply, relying on an attorney’s informal opinion that no infringement had occurred. The defendants failed to disclose the attorney’s disclaimer regarding the informal opinion.

Consequently, Drop Stop sued and served five defendants. The defendants defaulted on the lawsuit and moved to set aside the default, arguing improper service. The district court vacated the default, however, noted defendants were unduly delaying litigation. After mediation talks were unsuccessful, defendants added a defense of patent misuse based on the confidential settlement discussions among the parties. The district court struck down the arguments after reviewing the parties’ cross-motions to dismiss. Nonetheless, the defendants raised the same stricken defenses in their cross-motion for summary judgment. They also filed numerous ex parte motions.

The district court granted Drop Stop partial summary judgment and the parties subsequently settled. The parties stipulated to entry of judgment in favor of Drop Stop on the remaining infringement claims and the court’s determination of attorney’s fees. The court awarded $600,000.00 in fees, finding the totality of defendant’s actions throughout litigation constituted exceptional circumstances.

The Appeals Court:

The federal court of appeals affirmed, relying on precedent from the Supreme Court of the United States (SCOTUS) and held a party’s unreasonable conduct may not be necessarily be independently sanctionable, however, can still be exceptional. The appeals court noted defendant’s bad behavior continued throughout every stage of litigation including their reliance on the attorney’s informal non-infringement opinion and removal of disclaimer, purposeful evasion of service, addition of defenses in motions based on confidential settlement talks, late timing of discovery, and unnecessary and prohibited ex parte motions.

Not surprisingly, the takeaway here is that when attorney’s engage in bad behavior in litigation they should expect to be on the receiving end of the consequences.

Simply put, it should be every attorney’s goal not to unnecessarily anger the judge.

The case is Drop Stop LLC, v. Zhu.

Across the country, lawyers are prognosticating that there will be an avalanche of Zantac lawsuits in the upcoming years according to a Law.com report. This prediction is in response to a recent discovery by the U.S. Food & Drug Administration that the heartburn drug contains an ingredient that may cause cancer. This revelation caused Sanofi, the manufacturer of Zantac, to recall the drug.

Lawsuits Already Filed:

As of now, approximately a dozen lawsuits have been filed against Safoni. These include consumer class actions as well as individual cases. All the cases allege Safoni, as well as other drug manufacturers, were aware that ranitidine – the active ingredient in many heartburn medications – could cause cancer. Studies have shown that ranitidine metabolizes in the body into N-nitrosodimethylamine (NDMA) – a known possible carcinogen. Ranitidine can cause unsafe levels of NDMA in the body. The lawsuits allege the drug manufacturers knew of this risk but failed to disclose it to their customers. According to the FDA, its preliminary testing found NDMA in some ranitidine medicines – including Zantac – but the investigations remain open.

The FDA found NDMA in blood pressure and heart failure medicines, such as valsartan, in 2018. The discovery prompted more than 140 lawsuits, which have now been coordinated in multidistrict litigation (MDL) in the state of New Jersey. In the valsartan lawsuits, the allegations are a manufacturing defect. The Zantac lawsuits, on the other hand, will focus on its inherent defect because of how NDMA reacts with the human body.

Hundreds of Thousands Affected:

Legal analysts predict the litigation that will ensue could be significant, as there are millions of people who take Zantac, which first began selling back in 1983. As of now, four defendants are named in the lawsuits against manufacturers. Moreover, some legal analysts say that because the science linking NDMAs to cancer is strong and Zantac is a widely used drug, the potential for plaintiffs who can qualify in a class action lawsuit is in the hundreds of thousands. It is predicted that the lawsuits will dwarf what is happening against Monsanto for its RoundUp product that has been linked to cancer.

While the FDA disclosed its investigation of the presence of NDMA in ranitidine medications, it did not go so far as to recommend customers to stop using them. The drugmaker Novartis, however, announced it would stop distributing its generic ranitidine medications. Additionally, CVS, Rite Aid, Walgreens and Walmart voluntarily pulled ranitidine products, including Zantac, off of its shelves. Thereafter, GlaxoSmithKline recalled its prescription Zantac and Sanofi recalled its over-the-counter Zantac.

NDMA has been linked to numerous cancers including those of the bladder, colon, esophagus, kidney, liver, prostrate, and stomach.

Earlier this summer, Pope Francis issued a groundbreaking law from Vatican City according to news reports. Specifically, his Holiness issued a law that requires all Catholic priests and nuns across the globe to report clergy sexual abuse to church authorities. The same is true for any cover-ups of sexual abuse by superiors. The move is an important one in the Church’s new effort to hold its priestly hierarchy accountable for its tainted history of failing to protect its followers from clergy sexual abuse.

Protections and Guidelines

The new church law not only provides guidelines on reporting, but also provides protections for whistleblowers. This includes outlining procedures for how to conduct preliminary investigations when the accused is a cardinal, bishop, or other religious superior. The law also mandates all dioceses worldwide to have a system put in place so that sexual abuse claims are received confidentially. The law also provides a legal framework for bishops in the United States to use when preparing to adopt accountability measures in response to the sexual abuse scandal in America.

Thousands Affected

Under Pope Francis’s law, the world’s 660,000 nuns and 415, 000 priests are now mandated reporters of sexual abuse. They are required to let church authorities know when they learn or have well-founded motives to believe sexual misconduct is happening. This includes when a cleric or nun is engaged in sexual misconduct with an adult, sexual abuse of a minor, or possession of child pornography. They also must report to church authorities if there is belief that a superior has covered up any of the aforementioned crimes.

Of note, the new law does not mandate police reporting. Part of the Vatican’s reasoning is fear of the church in parts of the world where Catholics are a persecuted minority. Before this law, which places a civil reporting requirement, reporting was left up to the conscience of the individual priest and/or nun. That being said, there are no punitive measures for failure to report nor are there sanctions if dioceses fail to comply (although they could be accused of negligence for covering-up a scandal).

Help for Victims

The Pope also mandated that any victims of the Church reporting sexual abuse must be welcomed as well as offered spiritual, psychological, and medical assistance. Notably, the Vatican fell short of requiring financial reparations to victims.

For more information on this issue, click here.

When a lawsuit is started, it may come as a surprise to the person or entity being sued. Or, if the defendant is used to being served on a near-daily basis, it may be a common occurrence. Importantly, whether a defendant is being sued for the first time or the 100th time, the manner in which service of process is done correctly remains a constant. While the filing of a lawsuit tolls – or stops – the statute of limitations from running, the lawsuit itself cannot move forward until proper service of process has been made on the defendant(s).

Importance of Proper Service:

Courts across the nation have held personal jurisdiction, which is obtained through service of process, is the bedrock of due process. Not surprisingly, service of process is mandatory in every lawsuit. Moreover, it is only after the defendant has been properly served that a court obtains jurisdiction over him or her to impose an enforceable judgment of liability (and resulting damages). Failure to obtain proper service upon the defendant requires that the lawsuit be dismissed due to the court’s lack of jurisdiction. Just as important, if the applicable statute of limitations has run and the plaintiff does not obtain proper service in a timely fashion this may be an uncorrectable error, thus barring him or her from recovering at all.

The most common and accepted method of process of service in Georgia, and other states across the nation, is personally if the defendant is an individual or upon an officer or managing agent if the defendant is a business entity. There are other acceptable alternative methods of service of process, however, including waiver (akin to acknowledgment by defendant). Once the defense of improper service is raised, the plaintiff bears the burden of effectuating proper service and can do so as a matter of right at any time prior to the expiration of the statute of limitations. If a defendant does not raise the defense of insufficient process of service in its first responsive pleading or filing, this defense is waived.

Determining Proper Service

Typically, a defendant who is served – and no waiver of service has happened – will immediately investigate the circumstances surrounding the actual service of process. The purpose of this investigation is to see if there is a way to claim improper service of process and defeat the lawsuit. Common questions asked by a defendant regarding service of process include:
● Whether both the summons and complaint were included with the process;
● Whether the summons correctly identified the proper court;
● If the defendant is a business entity – who was served, what is their title, and what are their duties;
● What was the date of entry of the service of process;
● At what location was process served; and
● Who was the individual who served process (including what they were wearing and what was communicated).
Despite the critical part service of process plays in a lawsuit, many plaintiffs take this for granted and they should not.