But did you know you might not even be bound by the rules of
your home county or state anyway? Because when it comes to
service of process in a federal case where a party being summoned
lives outside the state where the case has been filed, the
process server has a choice about which state’s rules to
follow. In fact, there always has been a choice, and over the
past few years, that choice has been expanded.

It’s a well-settled point of law that service of a
federal action is a federal question to be determined in
accordance with federal law. (Dodco, Inc. v. American Bonding Co.
(8th Cir. 1993) 4 F.3d 1387, 1388, quoting Jennings v. McCall
Corp., (8th Cir. 1963) 320 F.2d 64, 69 n. 4; See also Henderson
v. United States (1996) 517 US 654, 656, 116 S.Ct. 1638, 1640.)

But here’s where state law enters the picture. Before
1993, Federal Rule of Civil Procedure 4 permitted service of a
federal lawsuit in only one of two ways: either under the federal
rules or under the laws of the forum state (where the court is
located). After 1993, the revised Fed.R.Civ.P. 4(e)(1) expanded
the latter option, making it permissible to use any method of
personal service allowed in either the forum state or the state
"in which service is effected" (where you find the
subject of your serve).

One federal case decided after the 1993 rule change is
particularly illustrative. Burrows v. City of League City, Tex.,
985 F.Supp. 704 (S.D.Tex. 1997) involved serving process on a
California defendant. The plaintiff filed a federal lawsuit in
Texas against a man who sexually assaulted her while she was in
custody at the police department in League City, Texas. She
attempted to serve the defendant in Texas at the Houston Police
Department where he worked, then later at his home. Both times
the process server was unsuccessful. The plaintiff later learned
that the defendant had moved to California, and his only known
address in California was a Commercial Mail Receiving Agency (a
private mailbox).

Following the provisions of California Code of Civil Procedure
415.20(b), the process server properly served the defendant by
leaving a copy of the summons, complaint, and other documents
with an employee in charge of the private mailbox facility and
then mailed copies to the defendant. At trial, the defendant
moved to dismiss the action for insufficiency of service of
process under Fed.R.Civ.P. 12(b)(5).

Here’s how the court responded: "Under the Federal
Rules of Civil Procedure, service ‘may be effected in any
judicial district of the United States...by delivering a copy of
the summons and of the complaint to an agent authorized by
appointment or by law to receive service of process.’
Fed.R.Civ.P. 4(e)(2) (emphasis added). Therefore, the Court looks
to California law to determine whether…the person in charge
of the private post office boxes, was authorized to receive
service of process." The court concluded, "under
California law as expressed by the clear and unambiguous language
of Cal. Code of Civ. Proc. 415.20(b), service on [the defendant]
was properly effected....” Therefore, Fed.R.Civ.P. 4(e)(2)
validates service of federal actions perfected under the laws of
the forum state or the state where service is effected. This
gives a party the option of choosing the manner of service of
either the state where the court sits or where the subject is
found.

However, notwithstanding the option provided by Fed.R.Civ.P.
4(e)(1), take a closer look at the first part of Fed.R.Civ.P.
4(e)(2) which allows service upon an individual “by
delivering a copy of the summons and of the complaint to the
individually personally or by leaving copies thereof at the
individual’s dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein.”
So it seems as though the process server in an out-of-state
federal case has another option – to ignore both state’s
rules altogether, for example, a prohibition on serving on
Sunday.

Of course, there are process servers who say they’ll
serve your paper anywhere in the country, which begs the
question: Can one company really know the rules of service of
process for all 50 states? In short, the answer is yes. And that
company is Serve-em.com. At Serve-em.com, inter-jurisdictional
service of process is all we do. Furthermore, we take the
initiative of keeping you informed on the status of your paper,
providing hardcopy confirmation every step of the way. You can
even track the progress of your paper on our website. For fast,
easy, reliable, knowledgeable, and Accountable
Inter-Jurisdictional Process Service, call toll-free 1-800
SERVE-EM (737-8336) or go to www.serve-em.com.