Tuesday, August 01, 2006

summonses, complaints and e-SOP oh my!

e-SOP is shorthand for electronic service of process. The trend toward and history of e-SOP is discussed in You’ve Got Mail: The Modern Trend Towards Universal Electronic Service of Process, 51 Buff. L. Rev. 337 (2003) (“YGM”). YGM suggested, among other things, amending Rule 4 of the Federal Rules of Civil Procedure to allow e-SOP domestically under the same circumstances that it is currently allowed for service abroad under Rule 4(f)(3). ABL made this suggestion to the Federal Rules Committee (http://www.uscourts.gov/rules/cvdocket.pdf).

Recent developments in e-SOP were also discussed in the June edition of the Internet Law Journal (see link above), which noted that e-SOP is permitted in New York State or, theoretically, anywhere in the country, with respect to an action pending in a federal court in New York, under Hollow v. Hollow, 2002 WL 31056097, at *1 (N.Y. Sup. Ct. Aug. 19, 2002). [See also YGM, at 368 n.168] Hollow introduces the possibility of e-SOP within the State of New York pursuant to FRCvP 4(e)(1), which permits service upon individuals “pursuant to the law of the state” where the district court is located or where “service is effected.” Although Hollow involved service upon a foreign defendant, it was not a necessary element of its holding. The court in Hollow found that service was impracticable — albeit due to an evasive defendant hiding in a foreign country. Consequently, it appears that a federal court, relying on FRCvP 4(e)(1) and CPLR 308(5), may permit e-SOP upon a defendant where service proves to be impracticable. In other words, e-SOP may be effected anywhere in the United States (or the world) for actions pending in a state or federal court in New York. See also (http://www.uniset.ca/other/cs6/2005WL696769.html).


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