Your firm’s client is Mrs. Horatio Nemo. Mrs. Nemo was attending the America’s Cup in, San Francisco,
when she was pushed into the path of an oncoming car. While her injuries were not severe, she did
incur several hundred thousand dollars worth of medical bills.
She has settled with various parties involved in the case, except for two people. One was the person
who pushed her – Commodore John Cox Stevens who is living in Vanuatu. The other is Princess Dakka,
who resides in Switzerland, who was driving the car that hit Mrs. Nemo. The firm has been able to
locate both of the parties in their respective countries.
You have been asked to write a brief memo on how the firm should proceed with the litigation at this
point.
1)
2)
3)
4)
What facts of the case are the most important?
What legal issue are you being asked to determine?
Which are the best resources to start with for doing your research?
What did you learn from the resource you started with and what could you research next?
1) What facts of the case are the most important?
1. Commodore John Cox Stevens and Princess Dakka are both foreign defendants
2) What legal issue are you being asked to determine?
1. After assuming
i. we have jurisdiction
ii. that the venue is proper
2. What are the rules for notice of service under the Federal Rules of Civil procedure?
3) Which are the best resources to start with for doing your research?
1. Start with Wright & Miller1
i. It is the definitive treatise on this topic
ii. Use the INDEX – even online
1. Is it “service of process” or “notice of service” or something else
entirely?
a. either way a keyword search will result in hundreds of hits
none of which could be relevant
iii. This resource will also quickly get you up to speed about any issues – past,
present, future
4) What did you learn from the resource you started with and what could you research next?
i) Learned
(1) Rule 4(f)(1) is the basic rule for service
(2) Rule 4(m) makes a special exemption for service of foreign defendants – plaintiffs are
not bound to the 120 day rule
(3) How much time do they have after 120 days?
(a) The rule is silent
(b) So courts have to weigh in, BUT
(i) The 2nd circuit interprets this to mean
1. Attempt MUST be made to serve the defendant in those 120 days
(ii) The 9th circuit interprets this to mean
1. That there is an UNLIMITED time window
(iii) The 1st, 7th and now the 5th circuit interprets this to mean
1. That there is “a flexible due diligence” standard
(c) So there is a 3 way circuit split
(4) Since we are in California the 9th is the mandatory authority
(a) But we should be aware there is a disagreement
ii) Research next
(1) Hague Convention
(a) Are both countries signatories
1. If not a signatory, are there other legally recognized forms of service
1
Even though the current listed authors are Wright and Leipold, most people will refer to it as Wright and Miller