Federal Procedure,  Jurisdiction,  Waiver of Issues

Process Serving Gamesmanship

It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are.  Even when the defendant is overseas.

Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction.

The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make that case here.

Nor does he prevail on his argument that even if he was served, service was invalid for failing to comply with the Hague Convention. Never raised that in the district court, you see.

It is gamesmanship like this that makes for eventual unpleasantness, as when a colleague of mine had a defendant personally served with summons at the defendant’s daughter’s wedding (or reception, I forget which). The defendant had deftly avoided service for some time, so my colleague figured the defendant “had it coming” to be served in the one place my colleague couuld find him.