December 17, 2006

Don't Try This at Home

by PG

Engadget (via NYTimes) cheers a man for his interpretation of the rules of civil procedure:

Pat Dori, a disgruntled Dell customer who found no resolution to the issue of a broken laptop after five long months and 19 wasted phone calls, decided to go legal and sue the company for failing to adequately address the problem. The method by which Mr. Dori initiated the claim is the juicy core of this story: instead of going through the normal process of sending the court papers to Dell's headquarters in Texas, Dori thought to have the papers delivered to a Dell shopping mall kiosk instead. Quite unsurprisingly, no-one from Dell turned up in court on the stipulated date, resulting in Dori winning a $3,000 default judgment and a ruling to allow bailiffs to close the kiosk and seize items if the judgment was not paid. Dell has now settled the case out of court for undisclosed terms, although the company would have appealed the decision -- had it actually turned up to court, that is. Mr. Dori, our latest hero for sticking it to the man in such a crafty manner, says that he thinks "any regular person can do this," as long as you "have the law on your side."
I doubt that the law was on Mr. Dori's side in serving process to a Dell shopping mall kiosk. One commenter does note, "Have a kiosk in a mall? You must accept service of process there. Civil Procedure wonks could point out that, most likely, by opening the laptop package & using the computer he agreed to serve process on Dell Inc.'s home office only - but clearly, litigating that would have cost more than $3k." If such dodges became common practice, I doubt that Dell would continue to take the attitude that litigation isn't worth it. Presumably this suit must have been filed in a state with lax service standards, as the standby method under FRCP 4(6)(1) is a bit more demanding: "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant."

December 17, 2006 3:26 AM | TrackBack
Comments

Echoing the title, when I was externing a plaintiff nearly got her suit against the United States tossed out because her lawyer served someone at the local Post Office. (Plaintiff was a passenger on a Long Beach bus that collided with a postal truck, so she was suing the City of Long Beach and the U.S.).

Posted by: Armen at December 17, 2006 4:07 AM

On the other hand, I've had people use secretary of state service and time it in the Thanksgiving to Christmas period. Service is effective when the Secretary of State gets served. So, service arrives (i.e. the green card is signed) the Tuesday before Thanksgiving. Service is processed (i.e. someone opens the letter) the week after Thanksgiving and mails out the notice to the served party a week later (14 days later ...) into the Christmas mail rush, which delays it another 3-4 days before the party "served" has actual notice.

By then a notice of default (20 days) is filed and a default judgment begins to be chased.

Posted by: Stephen M (Ethesis) at December 24, 2006 1:05 PM
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