B-197739.OM, JAN 26, 1982

B-197739.OM: Jan 26, 1982

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S. DISTRICT COURT AUTHORIZING SERVICE OF PROCESS BY CERTIFIED MAIL IS INVALID UNDER FRCP. IS LARGELY ACADEMIC. WHICH WAS PROMULGATED BY THE U. THE CLERK OF COURT FOR THE NORTHERN DISTRICT OPINED THAT THE RULE IS TECHNICALLY ILLEGAL. WE NOTE INITIALLY THAT QUESTIONS INVOLVING THE VALIDITY OF LOCAL RULES OF COURT ARE NOT FOR RESOLUTION BY CLERKS OF COURT. THEY ARE CUSTOMARILY ADDRESSED IN THE FIRST INSTANCE BY THE DISTRICT COURTS. YOUR QUESTION AND OUR RESPONSE WERE CONSIDERED WITH THIS IN MIND. IF THE PERSON SO SERVED FAILS TO APPEAR IN PERSON OR BY COUNSEL *** SERVICE OTHER THAN BY CERTIFIED OR REGISTERED MAIL SHALL BE MADE AS PROVIDED BY THE FEDERAL RULES OF CIVIL PROCEDURE. ***" THE DISTRICT COURT'S AUTHORITY TO PRESCRIBE LOCAL RULES IS BASED ON RULE 83 OF THE FEDERAL RULES OF CIVIL PROCEDURE (FRCP).

B-197739.OM, JAN 26, 1982

SUBJECT: VALIDITY OF U. S. DISTRICT COURT RULE AUTHORIZING SERVICE OF PROCESS BY CERTIFIED MAIL (CODE 181680; FILE B-197739) DIGEST: QUESTION WHETHER LOCAL RULE PROMULGATED BY U. S. DISTRICT COURT AUTHORIZING SERVICE OF PROCESS BY CERTIFIED MAIL IS INVALID UNDER FRCP, RULE 83, FOR INCONSISTENCY WITH PERSONAL SERVICE REQUIREMENTS OF FRCP, RULE 4, IS LARGELY ACADEMIC, SINCE (1) DEFENDANTS SERVED UNDER LOCAL RULE MAY IGNORE PROCESS DELIVERED BY MAIL WITHOUT SUFFERING JUDGMENT BY DEFAULT; AND (2) DEFENDANTS WHO DO NOT IGNORE THE PROCESS AND ENTER A GENERAL APPEARANCE WAIVE ANY INFIRMITIES ASSOCIATED WITH LOCAL RULE. SEE CASES CITED.

SENIOR GROUP DIRECTOR, GGD - JOHN M. OLS, JR.:

THIS RESPONDS TO YOUR REQUEST FOR OUR VIEWS ON THE PROPRIETY OF LOCAL RULE 7, WHICH WAS PROMULGATED BY THE U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. LOCAL RULE 7 PERMITS SERVICE OF PROCESS BY CERTIFIED MAIL. THE CLERK OF COURT FOR THE NORTHERN DISTRICT OPINED THAT THE RULE IS TECHNICALLY ILLEGAL, SINCE IT CONTEMPLATES A MODE OF PROCESS NOT AUTHORIZED BY RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE.

WE NOTE INITIALLY THAT QUESTIONS INVOLVING THE VALIDITY OF LOCAL RULES OF COURT ARE NOT FOR RESOLUTION BY CLERKS OF COURT, BUT BY THE JUDICIARY. THEY ARE CUSTOMARILY ADDRESSED IN THE FIRST INSTANCE BY THE DISTRICT COURTS, AND ON APPEAL, BY THE APPELLATE COURTS. SEE E.G., FIRST NATIONAL BANK, HENRIETTA V. SBA, 429 F.2D 280 (5TH CIR. 1970); DREDGE CORP. V. PENNY, 338 F.2D 456, 461-462 (9TH CIR. 1964). YOUR QUESTION AND OUR RESPONSE WERE CONSIDERED WITH THIS IN MIND.

RULE 7 OF THE CIVIL RULES FOR THE U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, AUTHORIZING SERVICE OF PROCESS BY CERTIFIED MAIL, PROVIDES IN PART:

"THE MARSHAL MAY SERVE A SUMMONS OR OTHER CIVIL PROCESS BY CERTIFIED OR REGISTERED MAIL ***. SUCH SERVICE SHALL NOT BE THE BASIS FOR ENTRY OF A JUDGMENT BY DEFAULT. IF THE PERSON SO SERVED FAILS TO APPEAR IN PERSON OR BY COUNSEL *** SERVICE OTHER THAN BY CERTIFIED OR REGISTERED MAIL SHALL BE MADE AS PROVIDED BY THE FEDERAL RULES OF CIVIL PROCEDURE. ***"

THE DISTRICT COURT'S AUTHORITY TO PRESCRIBE LOCAL RULES IS BASED ON RULE 83 OF THE FEDERAL RULES OF CIVIL PROCEDURE (FRCP). RULE 83 AUTHORIZES EACH DISTRICT COURT TO MAKE AND AMEND RULES GOVERNING ITS PRACTICE. BOTH THE EXPRESS LANGUAGE OF THIS PROVISION AND THE MANNER IN WHICH IT HAS BEEN INTERPRETED PERMIT ONLY THOSE LOCAL RULES THAT ARE NOT INCONSISTENT WITH THE RIGHTS AND LIMITATIONS CONTAINED IN THE FRCP. FAGAN V. SUNBEAM LIGHTING CO., INC., 13 FED.R.SERV. 2D 59A (1969). LOCAL RULE 7, WHICH WAS APPROVED UNANIMOUSLY BY THE FULL COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, REPRESENTS AN EXERCISE OF THE DISTRICT COURT'S RULE 83 RULEMAKING AUTHORITY.

FRCP, RULES 4(D)(1) AND (3) PRESCRIBE "FEDERAL" METHODS FOR SERVICE OF PROCESS. THESE METHODS INCLUDE: (1) DELIVERING COPIES OF THE SUMMONS AND COMPLAINT TO THE INDIVIDUAL PERSONALLY; (2) LEAVING COPIES AT HIS DWELLING HOUSE OR PLACE OF ABODE WITH SOME PERSON OF SUITABLE AGE OR DISCRETION THEN RESIDING THEREIN; AND (3) DELIVERING COPIES TO AN AGENT AUTHORIZED BY APPOINTMENT OR BY LAW TO RECEIVE SERVICE OF PROCESS. THESE METHODS DO NOT INCLUDE SERVICE OF PROCESS BY MAIL. HOWEVER, FRCP RULE 4(D)(7) PERMITS SERVICE IN THE MANNER PRESCRIBED BY THE LAW OF THE STATE IN WHICH THE DISTRICT COURT IS SITUATE. UNDER PRESENT LAW, THE PROPRIETY OF SERVICE OF PROCESS BY MAIL DEPENDS UPON WHETHER SUCH SERVICE IS PERMISSIBLE UNDER APPLICABLE STATE LAW. SEE ADAMS V. AMERICAN BAR ASSOCIATION, 400 F.SUPP. 219 (D.PA. 1975).

OUR RESEARCH INDICATES THAT THERE IS NO PROVISION IN ILLINOIS LAW THAT GENERALLY AUTHORIZES SERVICE OF PROCESS BY CERTIFIED MAIL. ALTHOUGH LIMITED USE OF SERVICE BY MAIL IS PERMITTED IN ACTIONS INVOLVING SMALL CLAIMS, SEE ILL.ANN.STAT., CH. 110A, SEC. 285 (SMITH HURD, 1968), ILLINOIS SERVICE OF PROCESS STATUTES OTHERWISE PARALLEL THE PERSONAL SERVICE REQUIREMENTS OF THE FEDERAL RULES. THE GENERAL ILLINOIS PROCESS STATUTE PROVIDES THAT "EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, SERVICE OF SUMMONS UPON AN INDIVIDUAL DEFENDANT SHALL BE MADE (A) BY LEAVING A COPY THEREOF WITH THE DEFENDANT PERSONALLY OR (B) BY LEAVING A COPY AT HIS USUAL PLACE OF ABODE ***" ILL.ANN.STAT., CH. 110, SEC. 13.2 (SMITH-HURD SUPP. 1981- 1982). BASED ON THE REQUIREMENTS PRESCRIBED BY SECTION 13.2 OF CHAPTER 110, ABOVE, THE APPELLATE COURT OF ILLINOIS HAS HELD THAT SERVICE TO BE EFFECTIVE MUST BE BY PERSONAL SERVICE UNLESS OTHERWISE PROVIDED BY LAW. BELL FEDERAL SAVINGS AND LOAN V. HARTON, 59 ILL.APP.2D. 923, 376 N.E.2D 1029 (1978). WE THINK IT IS CLEAR, THEREFORE, THAT THE SERVICE BY MAIL PROVISION OF LOCAL RULE 7 IS NOT A FORM OF PROCESS AUTHORIZED BY FRCP, RULE 4.

THE QUESTION THUS BECOMES WHETHER LOCAL RULE 7 IS INCONSISTENT WITH FEDERAL RULE 4, AND, HENCE, AN INVALID EXERCISE OF THE DISTRICT COURT'S RULE 83 RULEMAKING AUTHORITY. ALTHOUGH QUESTIONS REGARDING THE VALIDITY OF LOCAL RULES ARE PECULIARLY FOR RESOLUTION BY THE JUDICIARY, THE ISSUE INVOLVED HERE - WHETHER LOCAL RULE 7 IS INVALID - IS LARGELY ACADEMIC. EXPLAINED BELOW, DEFENDANTS MAY IGNORE PROCESS DELIVERED BY MAIL IN THE NORTHERN DISTRICT OF ILLINOIS, AND SUFFER NO LEGAL CONSEQUENCES AS A RESULT. DEFENDANTS WHO DO NOT IGNORE SUCH PROCESS AND WHO MAKE A GENERAL APPEARANCE IN COURT PERSONALLY OR THROUGH COUNSEL WAIVE ANY INFIRMITIES THAT MAY BE ASSOCIATED WITH PROCESS UNDER LOCAL RULE 7.

THE FORMS OF PROCESS COVERED BY FRCP RULE 4, INCLUDING THE TYPES AUTHORIZED UNDER RULE 4(D)(7), ARE COMPULSORY IN NATURE. THIS MEANS THAT A FAILURE TO APPEAR IN COURT IN RESPONSE TO THE PROCESS CONSTITUTES A BASIS FOR ENTRY OF A JUDGMENT BY DEFAULT. SEE FED.R.CIV.P., RULE 55. HOWEVER, THE PROCESS BY MAIL AUTHORIZATION SET FORTH IN THE LOCAL RULE DOES NOT SEEM TO BE COMPULSORY, AND THEREFORE DIFFERS MARKEDLY FROM THE TYPES OF PROCESS WITH WHICH RULE 4 IS CONCERNED. FN1 IN THIS REGARD, THE LOCAL RULE PROVIDES THAT SERVICE OF PROCESS BY CERTIFIED MAIL "SHALL NOT BE THE BASIS FOR ENTRY OF A JUDGMENT BY DEFAULT"; IN THE EVENT A PERSON SERVED FAILS TO APPEAR IN THE ACTION OR IGNORES THE PROCESS DELIVERED BY MAIL, SERVICE MUST BE MADE "AS PROVIDED FOR IN THE FEDERAL RULES OF CIVIL PROCEDURE." SINCE NO LEGAL CONSEQUENCES ATTACH TO THE DEFENDANT'S FAILURE TO APPEAR, PROCESS SERVED UNDER LOCAL RULE 7 CLEARLY IS OF A DIFFERENT CHARACTER THAN THE COMPULSORY PROCESS AUTHORIZED BY RULE 4.

SINCE LOCAL RULE 7 PROCESS IS NOT COMPULSORY, AND THE DEFENDANT SUFFERS NO LEGAL CONSEQUENCES AS A RESULT OF A FAILURE TO APPEAR, INFIRMITIES IN THE RULE, IF ANY, ARE NOT OF THE VARIETY THAT WOULD DEPRIVE LITIGANTS OF A RIGHT TO SERVICE IN ACCORDANCE WITH A MODE SPECIFICALLY AUTHORIZED BY FRCP, RULE 4. IN FACT, LOCAL RULE 7 SPECIFICALLY PROVIDES FOR PERSONAL SERVICE WHEN THE DEFENDANT IGNORES SERVICE DELIVERED BY MAIL.

PROCESS SERVED BY MAIL UNDER THE LOCAL RULE MAY BE CONSIDERED BY SOME TO HAVE THE COLOR OF COMPULSORY PROCESS BASED ON ITS DESIGNATION AS, AND PHYSICAL LIKENESS TO, A SUMMONS AND COMPLAINT. ALTHOUGH THERE IS NO INDICATION THAT LITIGANTS IN THE NORTHERN DISTRICT OF ILLINOIS HAVE RAISED THIS ARGUMENT, OR EVEN SHARE THIS CONCERN, IF THE ARGUMENT WERE TO BE RAISED IT WOULD MOST LIKELY BE BY AN INDIVIDUAL WHO MISTAKENLY CONSIDERED THE MAIL PROCESS COMPULSORY, AND THEREFORE MADE AN "INVOLUNTARY" IN COURT APPEARANCE TO RESPOND TO THE "SUMMONS".

IT IS WELL ESTABLISHED, HOWEVER, THAT A GENERAL APPEARANCE IN COURT UNDER THESE CIRCUMSTANCES WOULD OPERATE TO WAIVE ANY DEFECTS IN THE SERVICE OR RETURN OF PROCESS. FED.R.CIV.P., RULE 12(H)(1)(B); MURPHY V. TRAVELLER'S INSURANCE CO., 534 F.2D 1155, 1159 (5TH CIR. 1976). INFIRMITIES IN THE PROCESS WOULD BE LEGALLY IMMATERIAL, AND THE DEFENDANT'S POSITION WOULD BE JUST WHAT IT WOULD HAVE BEEN HAD HE BEEN BROUGHT IN BY VALID SERVICE OF PROCESS. ROWLEY V. MCMILLAN, 502 F.2D 1326, 1332-33 (4TH CIR. 1974); ROSEMARY L. V. KEVIN D.C., DEL. , 422 A.2D 1272, (1980); 5 AM. JUR. APPEARANCE SEC. 7 (1962). IT IS IRRELEVANT FROM A LEGAL STANDPOINT THAT THE DEFENDANT OR HIS ATTORNEY MAY HAVE BEEN IGNORANT AT THE TIME OF THEIR APPEARANCE IN COURT OF THE INFIRMITIES OR DEFECTS THAT OTHERWISE WOULD HAVE RENDERED THE PROCESS VOID. ID.

BASED ON THE FOREGOING, WE SEE NO PURPOSE TO BE SERVED IN APPRISING THE CHIEF JUSTICE OF POSSIBLE INFIRMITIES IN LOCAL RULE 7, OR OF QUESTIONING THE RULE'S VALIDITY IN DISCUSSIONS WITH THE ADMINISTRATIVE OFFICE OR THE CHIEF JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS. WE WOULD RECOMMEND, HOWEVER, THAT THE GAO REPORT ON CIVIL PROCESS MAKE NOTE OF THE EXISTENCE OF LOCAL RULE 7 AS A MATTER OF GENERAL INTEREST. THIS COULD BE FOLLOWED BY AN OBSERVATION THAT UNDER AMENDMENTS TO THE FRCP NOW PENDING BEFORE THE JUDICIAL CONFERENCE, PROCESS BY MAIL WOULD BECOME AN AUTHORIZED FORM OF COMPULSORY PROCESS. THIS WOULD MEAN THAT A DEFENDANT WHO IGNORES A SUMMONS DELIVERED BY CERTIFIED MAIL WOULD RUN THE RISK OF AN ENTRY OF A JUDGMENT BY DEFAULT. THIS, OF COURSE, IS NOT THE CASE UNDER LOCAL RULE 7.

FN1 A SUMMONS SERVED UNDER FRCP, RULE 4(D) MUST CONFORM TO THE REQUIREMENTS OF RULE 4(B) WHICH PROVIDES THAT THE DOCUMENT SHALL NOTIFY THE DEFENDANT THAT IN CASE OF HIS FAILURE TO APPEAR JUDGMENT BY DEFAULT WILL BE RENDERED AGAINST HIM FOR THE RELIEF DEMANDED IN THE COMPLAINT.