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Service Case Analysis

It is difficult to quarrel with the court’s holding affirming the dismissal of the suit against Diamond Blade Warehouse, Inc. However, the reinstatement of the suit against Mansfield suffers from two flaws: (1) sec. 801.11(1)(d) is either ambiguous, or it unambiguously does not allow the service in this case; and (2) the court uses circular reasoning to hold the process server acted reasonably in serving Levy instead of Mansfield.

The statute provides, “In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.”

At issue is the “or” between the words “defendant” and “upon.”

The court determined that the “or” in the statute can be read in only one way: In any case, by serving the summons [1] in a manner specified by any other statute upon the defendant or [2] upon an agent authorized by appointment or by law to accept service of the summons for the defendant.

However, there is no reason whatsoever why the “or” can’t be read as follows instead: In any case, by serving the summons in a manner specified by any other statute [1] upon the defendant or [2] upon an agent authorized by appointment or by law to accept service of the summons for the defendant.

The latter interpretation is the more natural one, due to the repetition of the word “upon” before both “the defendant” and “an agent …”

Thus, it should be expected that, should this case receive further review, the Supreme Court will, at a minimum, find the statute ambiguous.

The court’s second flaw is circular reasoning in holding the service of Levy proper.

Any reasonable process server knows that, while corporations are served through agents, individuals must be served personally, or, if this cannot be done “with reasonable diligence,” then upon another person “at the defendant’s usual place of abode.”

It seems the process server in this case knew this, and knew that serving Levy instead was improper; thus, he insisted upon serving Mansfield personally, and initially refused to accept Levy’s assertions of authorization. Ultimately, however, he caved in to Levy.

There is no question that he received the run-around. Ultimately, however, it was his job to know the law, and know that Levy’s naked assertion of authorization is insufficient, and Mansfield had to be served personally.

In the case of a corporation, as in Horrigan, there are good reasons to permit a process server to rely on the assertions of an individual who holds himself out as the person authorized to accept service.

As the court in Horrigan observed, “When a person appears in response to a request for someone who may be served with legal process, it will normally be reasonable for the process server to serve that person. To hold otherwise would produce a situation whereby a process server becomes a participant in a game of ‘hide-and-seek’ at the mercy of secretaries or anyone else who chooses to prevent him from accomplishing his task.” Horrigan, 106 Wis.2d at 684.

Furthermore, a corporation is a legal fiction, and the proper person to serve is, at heart, wholly random.

The court in the case at bar concluded that the same reasoning applies to individuals, but it plainly does not. It is not reasonable for a process server to believe that some person not named as the defendant is authorized to accept service for a defendant sued as a natural person.

There is no “hide-and-seek” game involved; the defendant is the body that must be produced for service, period.

Mansfield’s argument to the court was correct: “the process server’s ‘perception’ of Levy’s authority to accept service is not the issue. [Mared] simply cannot, as a matter of law, achieve service of process on a non-disabled adult natural person in this manner.”

Instead of refuting this argument, the court of appeals stated, “Yet pursuant to Wis. Stat. sec. 801.11(1)(d), service can be achieved in this manner (emphasis in original).” However, the court never supports its false and conclusory holding by stating how it can be done.

Even if one accepts the court’s interpretation of the statute and the meaning of “or,” service still must be “upon an agent authorized by appointment or by law to accept service of the summons for the defendant.”

Links

Wisconsin Court of Appeals

Related Article

Surrogate service of process acceptable

It is undisputed that Levy was not actually authorized by appointment to accept service. Thus, service could only be effected if he was authorized “by law.” But what law that is, the court of appeals does not say, except to cite the holding in Horrigan that reasonable reliance is sufficient when serving a corporation.

Prior to this case, however, no “law” has ever permitted a non-disabled adult natural person to be served in this fashion. How then could the process server’s reliance have been reasonable, regardless of how persistent Levy may have been?

Admittedly, the result in this case is a fair one — Mansfield had actual knowledge of the suit, and it was the actions of Mansfield’s employee that were the primary cause of the improper service.

Nevertheless, the court’s holding flies in the face of the guiding principles with which it began its analysis: “service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction”; and proper service is required “notwithstanding actual knowledge by the defendant.”

Furthermore, permitting service upon a natural person based solely upon the vehemence of a third party who insists that he is authorized to accept service raises serious due process concerns that the court of appeals didn’t even consider.

– David Ziemer

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David Ziemer can be reached by email.

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