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Service Case Analysis

The decision remands the case to the circuit court to determine whether actual authority was granted to Levy by Mansfield, but the attorneys will likely find little guidance as to what constitutes actual authority.

While the court found no shortage of cases holding that actual, rather than apparent, authority is necessary to confer agency to accept service, courts will not find cases in which a non-disabled person actually appointed another to accept service.

The reason for this is fairly simple — non-disabled natural persons don’t appoint others to accept service for them, because there is nothing to gain by doing so. As Judge Brack says at the end of Hedda Gabler, "People don’t do things like that."

Statutes governing service, and cases interpreting those statutes, ultimately have one purpose — to balance the need of plaintiffs to obtain jurisdiction over defendants who don’t want to be served, and the need of defendants to obtain fair notice of lawsuits against them. The statutes are not intended to account for the interests of defendants who wish to make it easier for others to sue them.

In a footnote, the court wrote: "The court of appeals was concerned that ‘[i]f a process server cannot rely upon repeated confirmations from an individual regarding his or her authority to accept service on behalf of another individual, and a reasonable belief that that person is actually authorized to do so, the option of serving an individual’s authorized agent would be rendered impractical and almost futile.’ It is a valid concern, and one that may be correct, but the legislature is the appropriate body to rectify any such shortcomings (cites omitted)."

While the court finds it a "valid concern" that process servers can’t rely on repeated confirmations of authority by a purported agent, and thus, the option of serving an authorized agent is impractical, the impracticality of serving purported agents is not cause for concern, but a feature of the statute.

Rather than amending the statute to make service of authorized agent’s easier, the Legislature would be wiser to consider the meaning of the phrase "by appointment or law."

As the court noted, sec. 811.01(1)(d) is very similar to the Federal Rule of Civil Procedure 4(e)(2), a rule that contains the same phrase. However, there are federal laws which expressly contemplate service of appointed agents, rather than defendants.

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For example, 17 C.F.R. 1505(b) provides, "service or delivery of any communication issued by or on behalf of the [CFTC] to a futures commission merchant … shall constitute valid and effective service or delivery upon the … foreign trader."

Regardless of whether the merchant transmits the service to the trader, service is complete upon delivery to the trader’s appointed merchant.

Under Wisconsin law, there are also instances, again, such as the securities field, in which the statutes provide that a person engaged in certain activities is served when service is given to the commissioner of a state agency.

Given that there is no reason for any non-disabled natural person to appoint another to accept service, and that there is no way for a process server to reasonably rely on a purported agent’s representations that he has actual authorization to accept service for a principal, it is reasonable to read the phrase "by appointment or law" as one phrase, encompassing instances in which a statute designates agency for service, rather than as two phrases — "by appointment" or "by law" a reading that contemplates non-disabled natural persons actually appointing agents for service of process.

Thus, the concerns about the impracticability and futility of serving an agent are much ado about nothing.

— David Ziemer

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David Ziemer can be reached by email.

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