2.13 Service of Process and Corporate Disclosure Statement

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

2.13 SERVICE OF PROCESS AND CORPORATE DISCLOSURE STATEMENT

2.1301 Service of Process.

A. Purpose.

According to the United States Supreme Court, in Henderson v. United States, ⁸¹⁷ service of process has the following purposes:

1. To give the court jurisdiction over the defendant;

2. To satisfy due process requirements by giving the defendant notice of the suit; and

3. To provide the defendant with an opportunity to defend claims.

Judgment generally cannot be entered against a defendant unless: (i) the defendant has been properly served with process; (ii) the defendant has either accepted service of process or waived service of process; or (iii) the defendant has entered an appearance.

A good example of the consequences of improper service of process appears in Goldbelt Wolf, LLC v. Operational Wear Armor, LLC. ⁸¹⁸ In this case, the district court had granted a default judgment but agreed to set aside that judgment because "a court cannot enter default judgment against a defendant until that defendant has been brought within the court's jurisdiction by adequate service of process." ⁸¹⁹ The plaintiff had attempted to serve process upon the defendant in Tennessee by serving an employee who had not been appointed by the defendant to accept service of process. The court analyzed whether service of process was proper under Tennessee law or under the "cure-all" statute in Virginia, ⁸²⁰ which provides that "[p]rocess which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter." The court found that service was not proper under either Tennessee or Virginia law and, accordingly, set aside the default judgment and declined to accept the magistrate judge's report and recommendation to the contrary. ⁸²¹

An interesting exception to this rule was made by the Fourth Circuit in Sky Cable, LLC v. DIRECTV, Inc., which concluded that an LLC that was the "alter ego" of its sole member was properly before the court even though service of process was effected only on the member. ⁸²²

B. Service of a Summons.

Fed. R. Civ. P. 4 sets out the requirements for issuance and service of a summons.

The plaintiff's counsel is responsible for preparing and presenting a summons to the clerk for issuance. ⁸²³

The summons must be served with a copy of the complaint. ⁸²⁴

Service may be effected by any person who is not a party and who is at least 18 years old. ⁸²⁵

The United States can be served by: (i) serving the United States attorney for the district in which the action is brought or serving an assistant United States attorney or clerical employee designated by the United States attorney, in writing and filed with the clerk of court; and (ii) sending a copy of the summons and complaint, by registered or certified mail, to the Attorney General of the United States in Washington, D.C.; and (iii) in the case of an action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and complaint, by registered or certified mail, to the officer or agency. ⁸²⁶

Service upon any federal employee sued in an individual capacity for acts in connection with performance of duties for the United States is effected by service on the United States. ⁸²⁷

Proof of service must be filed with the court. ⁸²⁸

It is important to note that service on a corporation of the United States has additional requirements. ⁸²⁹

C. Waiver of Service.

Most defendants have an affirmative duty to waive service. ⁸³⁰

A defendant who waives service does not waive any objection to venue or to personal jurisdiction. ⁸³¹

To request a waiver in accordance with Fed. R. Civ. P. 4, the plaintiff's counsel should send to the defendant:

1. One completed notice form for each defendant; ⁸³²

2. One copy of the complaint for each defendant;

3. Two copies of the waiver form for each defendant; ⁸³³ and

4. One self-addressed, stamped

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