Among the Federal Rules of Civil Procedure is Rule 12(b)(5) which permits a defendant to file a motion to dismiss a case for insufficient service of process. Most states have a similar rule for their own courts.
This rule arises from Constitutional requirements of due process. To commence a lawsuit and change the legal position of parties, due process requires that proper notice be given. This is a fundamental proposition and failure to serve notice violates due process. Even actual notice of a lawuit may not suffice if service of process requirements have not been met. Typically, this involves service by a sheriff, constable, marshal or other person duly appointed to serve process, who then makes a proper affidavit of service.
Recently, a case has become notorious because the Plaintiff’s attorney opted to name the Tor Project as a defendant simply because an offending website used Tor. Tor is a system by which anonymous internet use is facilitated; it can be used for good and for ill. The Tor Project likely enjoys complete immunity under Section 230 of the Communications Decency Act. However, I observed another flaw.
The chief defendant, a website, has faced litigation from this attorney before. As an obvious joke, they listed a colleague of his as the attorney to whom complaints should be addressed. Yet, the Plaintiff’s attorney chose to attempt to effect service on the defendant website at his colleague’s office. I observed that due process would not be met and the service defective. Moreover, it might constitute a fraud on the court since the attorney apparently knowingly attested to the court that service upon the colleague would be good service.
Techdirt, which is an online magazine addressing interesting technological developments, cited to my comments approvingly in a follow-up piece. Even if the purpose of the litigation is good, one should not violate a defendant’s right to due process to accomplish those ends.
