“READING A RULE” EXERCISE
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Purpose of this exercise
This will be the third time you’ll read the Two Men and a Truck case (found here). The first two times you read it, it was with the purposes of:
- Skills-in-context # 1: Basics of reading a case
- Skills-in-context # 2: Basics of briefing a case
Today we’ll use Two Men for Skills-in-context # 3: Basics of reading statutory materials.
Preparation
To do the exercises below, you’ll first need to:
- Yet again, re-read Two Men
- Print out and read handout How to Read a Rule or Statute
In reading Two Men, you’ll notice that the case mentions the Federal Rules of Civil Procedures (“FRCP”), namely, FRCP 65, which provides procedural guidance regarding injunctions and temporary restraining orders. Another rule relevant to the Two Men case is FRCP 4, which provides guidance regarding the content and service of the summons and complaint, the documents that are used to notify a defendant of the existence of a suit, the nature of the suit, and the defendant’s need to appear and defend against the suit. Other rules that would be relevant to the case, though not mentioned in Two Men, would be FRCP 8 (the complaint) and FRCP 11 (investigation and certification). We’ll study all these rules, and more, this semester.
Activity
Below are excerpts from FRCP 4 and FRCP 65. Each excerpt is followed by one or more questions, with a total of nine (9) questions and one (1) written component. Bring your answers to class and be prepared to discuss.
QUESTIONS BASED ON FRCP 4. SUMMONS.
Question 1: Must the summons contain each and every one of the items (A) through (G), or may some things be omitted? In answering the question, be ready to explain how the language of FRCP 4(a)(1) supports your conclusion.
Question 2: What do you think the purpose is of items (A) through (G)? Is this a “policy” purpose? If so, what is the policy?
FRCP 4(c) Service.
(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) [typically 90 days after the complaint is filed with the clerk] and must furnish the necessary copies to the person who makes service.
(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. . . .
Comment by Professor Nathenson: Rule 4 requires that a summons be served along with the complaint. A summons is a document that in essence says to the defendant, “Hey! You’ve been sued! Service of this document means that the court has power over you! Fail to show up at your own risk!” The complaint accompanies the summons and is written by the plaintiff’s attorney. It indicates the factual and legal basis for the plantiff’s claims against the defendant.
Question 3: Rule 4(c)(1) generally requires that the defendant be served with the complaint and summons within 90 days after the plaintiff initially files the complaint with the clerk. Why do you think the 90-day deadline exists? Think again about policy: when you understand why a rule exists, you’ll better understand how it works.
Question 4: Which of the following persons could serve the complaint and summons on the defendants? In answering these questions think about both: what FRCP 4 requires; and what seems like good, ethical law practice.
4(a). The CEO of Two Men and a Truck
4(b). The spouse of the CEO of Two Men and a Truck
4(c). The plaintiff’s lawyer
4(d). The plaintiff’s lawyer’s 17-year old office assistant
Question 5: Suppose the plaintiff in a hypothetical lawsuit is good friends with a United States Marshal, and asks the Marshal as a favor to serve the complaint on the defendant. Does FRCP 4(c)(3) allow the Marshal to do this?
FRCP 4(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally; [or]
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there . . . .
Comment by Professor Nathenson: FRCP 4(e) gives the rule for serving the summons and complaint on a person found in the U.S. or in a territory with a U.S. judicial district, as opposed to serving corporations and business entities, which is primarily governed by FRCP 4(h).
Question 6: Suppose a North Carolina state law permits the complaint and summons to be served by folding them into a paper airplane and tossing them into the air in the general direction of the defendant. Would Rule 4(e)(1) permit this method to be used as well? Does that seem fair to you? If not, what argument should the defendant make if they are served in this manner?
Question 7: Which of the following hypothetical manners of service would be permitted under FRCP 4(e)(2)?
7(a). Going up to Mr. H at a party and handing him the summons and complaint?
7(b). Leaving the summons and complaint at Mr. H’s house with his spouse, even though Mr. H’s spouse later throws the papers away without telling Mr. H?
7(c). Leaving the summons and complaint at Mr. H’s house with a drunk person who says “I’m H’s college buddy and just staying for the night”?
FRCP(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process [and other methods omitted]
Question 8: Which of the following manners of service on the defendant corporation in Two Men would be permitted under FRCP 4(h)?
8(a). Going up to Mr. H at a party and handing him the summons and complaint?
8(b). Leaving the summons and complaint at Mr. H’s house with his spouse?
QUESTIONS BASED ON FRCP 65. INJUNCTIONS AND RESTRAINING ORDERS.
(d)(1) Contents. Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.
Comment by Professor Nathenson: Note that FRCP 65(d)(1) does not say anything about how a court will determine whether or not to grant an injunction. Instead, courts look to guidance from other sources, particularly binding appellate decisions. That is what the district court did in Two Men, looking to prior appellate court opinions in Blackwelder and Microsoft. This “mixed” approach to judicial decision-making is extremely common, and any one decision may require a court to consider any or all of the following: Constitution, Congressional statutes, administrative agency regulations, the FRCP, prior judicial opinions, secondary sources, and more.
Question 9 (with writing component): Suppose the court’s injunction order in Two Men states only the following: “Hey defendants! Stop infringing the plaintiff’s name!!” Is that sufficient under FRCP 65(d)(1)? Why or why not? If you believe more is needed, then take a crack at it: draft an injunction order that complies with FRCP 65(d)(1). Bring it to class and be ready to discuss.
Posted July 29, 2019; revised Aug. 27, 2019 (fixing FRCP citation in Q 8)