If you have ever filed a law suit, then you know the importance of getting each of the defendants named in the suit properly served. When this does not happen in accord with the applicable court rules, your case can be dismissed.
Last month, two interesting cases played out involving process servers: one in federal court and one in the Michigan Court of Appeals. Both cases present a rare peek into the tense world of service of process.
The first case, Putruss v Kastaw, was filed in the Oakland County Circuit Court and assigned to Judge Rae Lee Chabot. The case arose from a melee that occurred at Plaintiff’s Southfield clothing store, MODA Couture, when some customers became unruly, allegedly causing damage to the store.
Some of the customers involved were charged criminally, but were subsequently acquitted by jury. The store owner sued in civil court for damages. There were discussions between the criminal defense lawyer and the lawyer for the clothing store concerning whether the criminal defense lawyer would accept service of the complaint in the civil matter on behalf of the defendants.
When the criminal defense lawyer declined to represent these individuals and accept service on their behalf, the plaintiff attempted service through deployment of a pair of well-known process servers [one of whom is utilized by our law firm from time to time]. Because the process servers were unable to obtain personal service over the individuals, plaintiffs were granted alternate service, resulting in a dispute over the claimed attempts made by the process servers.
Judge Chabot granted defendant’s motion to dismiss stating simply that she was convinced that there was lying under oath by plaintiff’s process servers. Not good enough, said the Court of Appeals in remanding the case for further factual findings by the lower court.
The second case, Nealy v Lotych, pending in federal court in Detroit, involves the allegedly unconstitutional actions of a court officer hired to execute a civil judgment. The court officer arrived at the judgment debtor’s home to execute the judgment, muscled his way in to the debtor’s home, would not leave the home, and demanded over $3000 from the debtor and his wife, or he threatened to seize the debtor’s truck.
As alleged, the actions taken by the court officer could be deemed illegal and overreaching. So the federal judge denied defendants’ motion for summary judgment.
These cases were covered in an article published in the Michigan Lawyers Weekly. In the article, Jeff Kirkpatrick, a past president of the Michigan Court Officer Deputy Sheriff and Process Servers Association, stated that while the vast majority of process servers and court officers follow the law, a few “bad apples” sometimes utilize overreaching tactics.
In the near future, it will become an industry standard for court officers and process servers to utilize GPS tracking records to verify their movements relative to an attempted service. Nothing wrong with a little technological verification when it comes to something as important as achieving personal service.