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Service of Process To establish a Web site, a person must have an Internet service provider or hosting company, register a domain name, and acquire domain name servicing. Pfizer, Inc., Pfizer Ireland Pharmaceuticals, and Warner-Lambert Co. (collectively, Pfizer) filed a suit in a federal district court against Domains By Proxy, Inc., and other persons alleged to be behind two Web sites- www.genericlipitors.com and www.econopetcare.com. Among the defendants were an individual and a company that, according to Pfizer, were located in a foreign country. Without investigating other means of serving these two defendants, Pfizer asked the court for permission to accomplish service of process via e-mail. Under what circumstances is service via e-mail proper? Would it be appropriate in this case? Explain. [ Pfizer, Inc. v. Domains By Proxy , __ F.Supp.2d __ (D.Conn. 2004)]
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Service of Process:
Finding the circumstances for service via e-mail proper:
• In order for the process of service to be valid when serving a foreign company e-mail may be used only under certain conditions. The court may direct the plaintiff to use e-mail in the compliance with due process as long as it is a reasonably calculated means of informing the party wherein the party has an opportunity to present their objections. The court noted that the use of e-mail has limitation that should be balanced against the benefits on an individual case-by-case basis.
• In this case the plaintiffs exhausted all alternate means of serving the defendant including the address used to register the defendant's domain and through the defendant's lawyer. Following those attempts the plaintiff made a diligent search for the defendant in the defendant's native country. At this point the only means left was to use the defendant's website e-mail contact information.
• Upon further investigation by the court, it was found that while an e-mail address was available, the domains connected to the defendant were no longer running. In light of that information it would not be reasonable to use the defendant's e-mail address because if they are connected to one or both of the defunct websites, the e-mail may not be received by the intended party.
• Alternately, the court may allow service by e-mail when there is verified e-mail correspondence between the plaintiff and the defendant.
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When and for what purpose is each of the following motions made? Which of them would be appropriate if a defendant claimed that the only issue between the parties was a question of law and that the law was favorable to the defendant's position?
(a) A motion for judgment on the pleadings.
(b) A motion for a directed verdict.
(c) A motion for summary judgment.
(d) A motion for judgment n.o.v.
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a.
The motion for pleadings was made to ask the court to decide the issue only on the basis of pleadings without proceeding to the trial. This motion was made when all the pleadings will be closed and judge will grant the motion when he will be satisfied that there is no further dispute on the question of fact and now sole issue is on the question of law.
b.
Motion for direct verdict made by the judge to the jury to return to particular verdict when a judge find that no particular jury would reach to the decision contrary to the earlier decision.
c.
Motion for summary judgment was filed by the either party to ask the court to enter summary judgment in his favor without any trial. It can be supported by evidence.
d.
Motion for judgment n.o.v (not withstanding the verdict) is filed when the judge does not withstand the verdict of jury or where judge believes that law was not properly applied in the trial court. In this motion, judge can amend or reverse the judgment of the trial court or jury.
Motion for summary of direct judgment would be appropriate if the defendant claimed that the only issue between the parties was a question of law.
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Service of Process Robert Destfi no and others fi led a lawsuit against twenty-nine individuals (including Effie Reiswig), ten businesses, and a church in a state court. Destfi no claimed that the defendants had used a bogus debt-elimination and tax-avoidance scheme to bilk him and the other plaintiffs out of tens of thousands of dollars. The Federal Deposit Insurance Corporation later took over one of the defendant-businesses, IndyMac Bank, and had the case removed to a federal district court. The plaintiffs dismissed their claims against IndyMac and requested that the case be remanded back to the state court. The federal court refused to remand the case and ultimately dismissed it. The plaintiffs appealed, claiming that the removal to federal court had been improper because several of the defendants had not consented to it. The consent of all defendants who had been properly served with a "petition for removal" would have been required for the removal to be proper. To decide if the removal had been proper, the appellate court had to determine whether the defendants had been properly served. If they had not been properly served, then their consent was not required. Two defendants that did not consent to removal were William Kennedy and The Lost Sheep, "a corporation sole created by Kennedy." Under California law, a "corporation sole" is a corporation consisting of a single person, generally the head of a religious organization. Service on the corporation had been made to Rita Johnson, not to Kennedy. Johnson was not identified as a corporate officer or as someone authorized to accept service for the corporation. Was the corporation properly served? What is the proper method for serving a corporation? Explain. [Destfi no v. Reiswig, 630 F.3d 952 (9th Cir. 2011)]
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Service of process means providing the other party with legal notice, a copy of paperwork that is filed with the court in order to start inform that person that the legal process has started.
In case of RD v. Rsg, the corporation was served properly because the corporation was solely created by WK and he was the owner of the corporation however the service of process was made to RJohnson and not to WK because he was not identified as a corporate officer who is authorized to accept service for the corporation.
In order to serve a corporation it is very important to serve the right person and write the exact name of the business and the person to be served. A domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served in a judicial district of the UnSts and at a place not within any judicial district of the UnSts.
• In a judicial district of UnSts
• A corporation may be served following state law in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made
• An officer, managing or general agent or any other agent who is authorized by appointment or by law to receive a service process should be delivered a copy of the summons. Mailing a copy of each to the dependent can also be done if the agent is authorized by statute
• At a place not within judicial district of the UnSts
• A corporation may be served by any internationally agreed means of service that can give notice
• If there is no internationally agreed means or if there is no specific means in international agreement, then a corporation is served
• by the law of the foreign country in an action in its courts of general jurisdiction,
• by the foreign authority which guide in the response to a letter rogatory or letter of request, or
• Unless restricted by the foreign country's law for sending any form of mail to the clerk addresses which requires a signed receipt.
• By any means that is not prohibited by international agreement as per the court orders
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Motion for a New Trial Washoe Medical Center, Inc., admitted Shirley Swisher for the treatment of a fractured pelvis. During her stay, Swisher suffered a fatal fall from her hospital bed. Gerald Parodi, the administrator of her estate, and others filed an action against Washoe seeking damages for the alleged lack of care in treating Swisher. During voir dire, when the plaintiffs' attorney returned a few minutes late from a break, the trial judge led the prospective jurors in a standing ovation. The judge joked with one of the prospective jurors, whom he had known in college, about his fitness to serve as a judge and personally endorsed another prospective juror's business. After the trial, the jury returned a verdict in favor of Washoe. The plaintiffs moved for a new trial, but the judge denied the motion. The plaintiffs then appealed, arguing that the tone set by the judge during voir dire prejudiced their right to a fair trial. Should the appellate court agree? Why or why not?
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Jury Misconduct. Michelle Fleshner worked for Pepose Vision Institute (PVI), a surgical practice. She was fired after she provided information to the U.S. Department of Labor about PVI's overtime pay policy. She sued for wrongful termination, and the jury awarded her $125,000. After the trial, a juror told PVI's attorneys that another juror had made anti-Semitic statements during jury deliberations. The comments concerned a witness who testified on PVI's behalf. According to the juror, the other juror said, about the witness: "She is a Jewish witch." "She is a penny-pinching Jew." "She was such a cheap Jew that she did not want to pay Plaintiff unemployment compensation." Another juror confirmed the remarks. PVI filed a motion for a new trial on the basis of juror misconduct. The trial judge held that the comments did not prevent a fair trial from occurring. PVI appealed. Do you think such comments are sufficient to require a new trial, or must a juror's bias be discovered during voir dire for it to matter? Explain. [Fleshner v. Pepose Vision Institute, 304 S.W.3d 81 (Mo. 2010)]
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A QUESTION OF ETHICS: Service of Process.
Narnia Investments, Ltd., filed a suit in a Texas state court against several defendants, including Harvestons Securities, Inc., a securities dealer. (Securities are documents evidencing the ownership of a corporation, in the form of stock, or debts owed by it, in the form of bonds.) Harvestons is registered with the state of Texas, and thus a party may serve a summons and a copy of a complaint on Harvestons by serving the Texas Securities Commissioner. In this case, the return of service indicated that process was served on the commissioner "by delivering to JoAnn Kocerek defendant, in person, a true copy of this [summons] together with the accompanying copy(ies) of the [complaint]." Harvestons did not file an answer, and Narnia obtained a default judgment against the defendant for $365,000, plus attorneys' fees and interest. Five months after this judgment, Harvestons filed a motion for a new trial, which the court denied. Harvestons appealed to a state intermediate appellate court., claiming that it had not been served in strict compliance with the rules governing service of process. [ Harvestons Securities, Inc. v. Narnia Investments, Ltd., 218 S. W.3d 126 (TexApp.-Houston 2007 )]
(a) Harvestons asserted that Narnia's service was invalid, in part, because "the return of service states that process was delivered to 'JoAnn Kocerek'" and did not show that she "had the authority to accept process on behalf of Harvestons or the Texas Securities Commissioner." Should such a detail, if it is required, be strictly construed and applied? Should it apply in this case? Explain.
(b) Whose responsibility is it to see that service of process is accomplished properly? Was it accomplished properly in this case? Why or why not?
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Ronald Metzgar placed his fi fteen-month-old son, Matthew, awake and healthy, in his playpen. Ronald left the room for fi ve minutes and on his return found Matthew lifeless. A toy block had lodged in the boy's throat, causing him to choke to death. Ronald called 911, but efforts to revive Matthew were to no avail. There was no warning of a choking hazard on the box containing the block. Matthew's parents hired an attorney and sued Playskool, Inc., the manufacturer of the block, alleging that the manufacturer had been negligent in failing to warn of the block's hazard. Playskool fi led a motion for summary judgment, arguing that the danger of a young child choking on a small block was obvious. Using the information presented in the chapter, answer the following questions.
Should Playskool's request for summary judgment be granted? Why or why not?
DEBATE THIS: Some consumer advocates argue that attorneys' high contingency fees-sometimes reaching 40 percent-unfairly deprive winning plaintiffs of too much of their awards. Should the government put a cap on contingency fees at, say, 20 percent of the award? Why or why not?
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Ronald Metzgar placed his fi fteen-month-old son, Matthew, awake and healthy, in his playpen. Ronald left the room for fi ve minutes and on his return found Matthew lifeless. A toy block had lodged in the boy's throat, causing him to choke to death. Ronald called 911, but efforts to revive Matthew were to no avail. There was no warning of a choking hazard on the box containing the block. Matthew's parents hired an attorney and sued Playskool, Inc., the manufacturer of the block, alleging that the manufacturer had been negligent in failing to warn of the block's hazard. Playskool fi led a motion for summary judgment, arguing that the danger of a young child choking on a small block was obvious. Using the information presented in the chapter, answer the following questions.
Suppose that the attorney the Metzgars hired agreed to represent them on a contingency-fee basis. What does that mean?
DEBATE THIS: Some consumer advocates argue that attorneys' high contingency fees-sometimes reaching 40 percent-unfairly deprive winning plaintiffs of too much of their awards. Should the government put a cap on contingency fees at, say, 20 percent of the award? Why or why not?
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Ronald Metzgar placed his fi fteen-month-old son, Matthew, awake and healthy, in his playpen. Ronald left the room for fi ve minutes and on his return found Matthew lifeless. A toy block had lodged in the boy's throat, causing him to choke to death. Ronald called 911, but efforts to revive Matthew were to no avail. There was no warning of a choking hazard on the box containing the block. Matthew's parents hired an attorney and sued Playskool, Inc., the manufacturer of the block, alleging that the manufacturer had been negligent in failing to warn of the block's hazard. Playskool fi led a motion for summary judgment, arguing that the danger of a young child choking on a small block was obvious. Using the information presented in the chapter, answer the following questions.
How would the Metzgars' attorney likely have served process (the summons and complaint) on Playskool, Inc.?
DEBATE THIS: Some consumer advocates argue that attorneys' high contingency fees-sometimes reaching 40 percent-unfairly deprive winning plaintiffs of too much of their awards. Should the government put a cap on contingency fees at, say, 20 percent of the award? Why or why not?
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Discovery Rules In the past, the rules of discovery were very restrictive, and trials often turned on elements of surprise. For example, a plaintiff would not necessarily know until the trial what the defendant's defense was going to be. In the last several decades, however, new rules of discovery have substantially changed this situation. Now each attorney can access practically all of the evidence that the other side intends to present at trial, with the exception of certain information-namely, the opposing attorney's work product. Work product is not a precise concept. Basically, it includes all of the attorney's thoughts on the case. Can you see any reason why such information should not be made available to the opposing attorney? Discuss fully.
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Discovery In October 2004, Rita Peatie filed a suit in a Connecticut state court against Wal-Mart Stores, Inc., to recover for injuries to her head, neck, and shoulder. Peatie claimed that she had been struck two years earlier by a metal cylinder falling from a store ceiling. The parties agreed to nonbinding arbitration. Ten days before the hearing in January 2006, the plaintiff asked for, and was granted, four more months to conduct discovery. On the morning of the rescheduled hearing, she asked for more time, but the court denied this request. The hearing was held, and the arbitrator ruled in Wal-Mart's favor. Peatie filed a motion for a new trial, which was granted. Five months later, she sought through discovery to acquire any photos, records, and reports held by Wal-Mart regarding her alleged injury. The court issued a "protective order" against the request, stating that the time for discovery had long been over. On the day of the trial-four years after the alleged injury-the plaintiff asked the court to lift the order. Should the court do so? Why or why not? [Peatie v. Wal-Mart. Stores, Inc., 112 Conn.App. 8, 961 A.2d 1016 (2009)]
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CASE PROBLEM WITH SAMPLE ANSWER: Appellate Review. BSH Home Appliances Corp. makes appliances under the Bosch, Siemens, Thermador, and Gaggenau brands. To make and market the "Pro 27 Stainless Steel Range," a restaurant-quality range for home use, BSH gave specifications for its burner to Detroit Radiant Products Co. and requested a price for 30,000 units. Detroit quoted $28.25 per unit, offering to absorb all tooling and research and development costs. In 2001 and 2003, BSH sent Detroit two purchase orders, for 15,000 and 16,000 units, respectively. In 2004, after Detroit had shipped 12,886 units, BSH stopped scheduling deliveries. Detroit filed a suit against BSH, alleging breach of contract. BSH argued, in part, that the second purchase order had not added to the first but had replaced it. After a trial, a federal district court issued its "Findings of Fact and Conclusions of Law." The court found that the two purchase orders "required BSH to purchase 31,000 units of the burner at $28.25 per unit." The court ruled that Detroit was entitled to $418,261 for 18,114 unsold burners. BSH appealed to the U.S. Court of Appeals for the Sixth Circuit. Can an appellate court set aside a trial court's findings of fact? Can an appellate court come to its own conclusions of law? What should the court rule in this case? Explain. [ Detroit Radiant Products Co. v. BSH Home Appliances Corp., 473 F.3d 623 (6th Cir. 2007)]
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Discovery Advance Technology Consultants, Inc. (ATC), contracted with RoadTrac, LLC, to provide software and client software systems for the products of global positioning satellite (GPS) technology being developed by RoadTrac. RoadTrac agreed to provide ATC with hardware with which ATC's software would interface. Problems soon arose, however. ATC claimed that RoadTrac's hardware was defective, making it difficult to develop the software. RoadTrac contended that its hardware was fully functional and that ATC had simply failed to provide supporting software. ATC told RoadTrac that it considered their contract terminated. RoadTrac filed a suit in a Georgia state court against ATC alleging breach of contract. During discovery, RoadTrac requested ATC's customer lists and marketing procedures. ATC objected to providing this information because RoadTrac and ATC had become competitors in the GPS industry. Should a party to a lawsuit have to hand over its confidential business secrets as part of a discovery request? Why or why not? What limitations might a court consider imposing before requiring ATC to produce this material?
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Ronald Metzgar placed his fi fteen-month-old son, Matthew, awake and healthy, in his playpen. Ronald left the room for fi ve minutes and on his return found Matthew lifeless. A toy block had lodged in the boy's throat, causing him to choke to death. Ronald called 911, but efforts to revive Matthew were to no avail. There was no warning of a choking hazard on the box containing the block. Matthew's parents hired an attorney and sued Playskool, Inc., the manufacturer of the block, alleging that the manufacturer had been negligent in failing to warn of the block's hazard. Playskool fi led a motion for summary judgment, arguing that the danger of a young child choking on a small block was obvious. Using the information presented in the chapter, answer the following questions.
Suppose that the judge denied Playskool's motion and the case proceeded to trial. After hearing all the evidence, the jury found in favor of the defendant. What options do the plaintiffs have at this point if they are not satisfied with the verdict?
DEBATE THIS: Some consumer advocates argue that attorneys' high contingency fees-sometimes reaching 40 percent-unfairly deprive winning plaintiffs of too much of their awards. Should the government put a cap on contingency fees at, say, 20 percent of the award? Why or why not?
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