The Server Must Know The Defendant Is Inside
By J. Craig Williams, Esq.
First-year law students grind through the Federal Rules of Civil Procedure, but perhaps nothing is more entertaining in that class than the ways you can serve a complaint on a defendant. Which is to say that the class is otherwise extremely boring, especially if students are entertained by an equally boring subject like service of process.
For example, one process server was frustrated a woman would not answer her door, even though he knew she was home. He saw the woman sitting next to an open, first-floor window shredding lettuce and washing it in a colander. He practiced his best alley-oop, over-the-shoulder toss and landed the summons in the colander. The court noted this method of service was one of the most creative means of getting a summons in front of someone and deemed the process server’s toss as effective service.
Anthony Paul Brenneke apparently defaulted on a nearly $300,000 judgment backed by a surety bond issued by Traveler’s Insurance. Travelers paid the judgment, but the insurance company was none too happy that Brenneke also defaulted on paying the indemnity to Travelers on the surety bond.
Not surprisingly, Travelers sued Brenneke.
According to the Court’s opinion, Brenneke, however, attempted to dodge service. The process server attempted to serve Brenneke four times, leaving notes and asking Brenneke to contact the process server. On the process server’s fifth and last trip to Brenneke’s house, Brenneke hid in his house, refusing to answer the door when the process server knocked. According to the process server, who had served Brenneke before, Brenneke responded to the door intercom and acknowledged he was at home and even looked out a front window at the process server.
Still he failed to answer the door.
Frustrated, the process server held up the summons and complaint to show Brenneke, and said, “You are served.” The process server promptly dropped the summons and complaint at the front doorstep and left. The process server completed a proof of service and filed it with the court.
Not surprisingly, Brenneke failed to file an appropriate answer to the complaint, but instead filed only an answer challenging jurisdiction based on lack of service. Brenneke did not challenge the other allegations in the complaint.
As a side note here, if Brenneke wanted to effectively challenge service of process, the procedurally proper way to do so requires a Motion to Quash the Service of the Summons; Brenneke did not file this motion. The court rejected Brenneke’s claim that he wasn’t served properly and when Traveler’s filed a motion for summary judgment against Brenneke, the court granted the motion because Brenneke failed to oppose it.
Brenneke filed an appeal, claiming the process server did not properly serve him with the summons and complaint. The Ninth Circuit Court of Appeals made short work of his argument and upheld the district court’s ruling that Brenneke had been properly served.
The moral of the story?
If a process server comes to your front door, then answer it and take the summons and complaint. Courts are not disposed to accept claims that you were never served properly.
And hire a lawyer. Had Brenneke hired an attorney, he wouldn’t have made the other mistakes he did, which led to a sizable judgment against him and in favor of Travelers. Travelers took Brenneke’s house in satisfaction of one of its judgments against him and the Ninth Circuit upheld the district court’s award of another $211,000 against Brenneke.
A costly result.
J. Craig Williams is a litigation attorney in Newport Beach, California and also licensed to practice in Washington, Iowa and Massachusetts. He recently published a book, How to Get Sued: An Instructional Guide, from Kaplan Publishing and available online and at all major booksellers. His second book, Bad Decisions: 10 Famous Trials That Went Wrong, also published by Kaplan, is due out later this year. Like all other first-year law students, he hated civil procedure, but loved stories about the escapades of process servers.
J. Craig Williams, Esq.
WLF | The Williams Lindberg Law Firm, PC
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