Certified Mail Service of Process

Yesterday, I discussed how to save a few dollars on service of process.  Along the same theme, service by certified mail is possible on persons who reside outside of Mississippi.  Rule 4 of the Mississippi Rules of Civil Procedure provides as follows:

"(5)  Service by Certified Mail on Person Outside State.  In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested.  Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”
This is one Rule where the comments are more helpful than the Rule.  The comments provide that:

"Certified mail service is authorized by Rule 4(c)(5) and is limited to persons outside the state. The plaintiff must send a copy of the summons and complaint to the person to be served by certified mail, return receipt requested [and must thereafter mail by first-class mail, postage prepaid, a copy of the summons and complaint to the person to be served at the same address. The Proof of Service must indicate the date on which the summons and complaint were mailed by first-class mail and must also include as an attachment the signed return receipt or the return envelope marked “refused.” Service upon a foreign corporation, partnership or unincorporated association is effective even if the certified mail is delivered to and signed for or refused by a person other than the addressee, if the person accepting delivery and signing or refusing delivery is an officer or employee of the defendant who is authorized to receive or who regularly receives certified mail. See Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) (finding service by certified mail upon a foreign corporation effective where the plaintiff addressed the certified mail to the foreign corporation’s registered agent for service of process and the certified mail was delivered to the proper address and signed for by the mail clerk rather than the registered agent). Service of process is not effective under Rule 4(c)(5) if the mailing is returned marked “unclaimed/refused”, “unclaimed” or “undeliverable as addressed.” See Bloodgood v. Leatherwood, 25 So. 3d 1047 (Miss. 2010)."

I am aware of at least one case where the issue pending is whether certified mail service of a private party is effective if someone else signs for it?  In theory, it is marked restricted delivery so no one should be able to get it.  From a practical standpoint, using the comments I would presume an agent can get it for the person.  Will be interesting. 

Saving Money on Service of Process

The Mississippi Rules of Civil Procedure provide a few ways to save on service of process fees.  Rule 4 of the Mississippi Rules of Civil Procedure provides under Section 3 that: 

"(3)  By Mail.
(A)  A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 1-B and a return envelope, postage prepaid, addressed to the sender.
(B)  If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitted by this rule.
(C)  Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing the notice and acknowledgment of receipt of summons.
(D) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation."

So if the other party does not return the acknowledgment within twenty (20) days, absent good cause, the court shall award the cost of service of process.  The language shall removes the discretion element from the court and makes it mandatory.  Due to paranoia, I am often selective on using this section unless I am confident the other party is not going to run.  I also want to make sure that I can still get process served within the 120 day window as required by Rule 4.  Still if you have a medical malpractice case with twenty-four named defendants, saving $5,000 on service of process that could be used on expert fees is certainly something to consider. 

Variances ini Walkways

Slip/trip and fall cases are often very fact sensitive.  The :Mississippi Court of Appeals dealt with the grant of summary judgment on one of these cases on Tuesday in Trull v. Riverboat Casino located here. The issue in the case was whether a variance in the height of the sidewalk could constitute a dangerous condition.  The Plaintiff had fell when the variance in the sidewalk caused her to trip.  The Court of Appeals said no.  Unfortunately, Mississippi caselaw has consistently held that the existence of slight variations in walkways or thresholds does not constitute a dangerous condition. See, e.g., McGovern, 566 So. 2d at 1226; Rowe, 248 Miss. at 415, 159 So. 2d at 283; Bond, 908 So. 2d at 88-82 (¶¶7-9).   There are a lot of facts that are not brought out in the opinions which can be found in the briefs at the Supreme Court website.  I have also heard that the injuries incurred in the case have resulted in multiple surgeries for the Plaintiff.  After reading the briefs, I hope the case goes up for the Mississippi Supreme Court to review.  There appears to be enough front the briefs to get around the cases cited above to make it a factual issue for a jury. 

Oral Argument of Interest

Today at 10:30 A.M. CST, the Mississippi Court of Appeals will hear oral arguments in Collins v. Collins.  This could potentially have a big impact on irreconcilable differences divorce in Mississippi.  The issue in the case is that the parties did a waiver of the financial disclosures and the only one party was represented at the time of the divorce.  The husband actually filled out a financial declaration but the wife never looked at it to notice his $420,000.00 retirement account.  The issue presented is whether the waiver is sufficient under these circumstances.  The wife is currently on public assistance from my understanding.  The argument can be viewed on the Mississippi Supreme Court website.  This is a case to watch for when an opinion comes out. 

Bankruptcy and Divorce

Bankruptcy and divorce unfortunately seem to go hand in hand.  Many people get used to living on two incomes and then cannot get by on just one income after a divorce.  So, what affect does bankruptcy have on the items agreed to in a divorce?  The answer is very little.  This was illustrated in Mosley v. Smith decided by the Court of Appeals yesterday.  A link to the opinion is here.  The case dealt with an unpaid car note.  The divorce decree had a hold harmless provision in it regarding the debt.  The husband discharged the debt in bankruptcy and the wife was sued for the amount as a result.  The husband tried to argue the bankruptcy discharged the debt or alternatively that the seven (7) year judgment statute of limitations applied to bar her claim.  The Court of Appeals said no noting that the bankruptcy did not discharge the Husband's debt to the wife by way of the hold harmless agreement and that the seven (7) year judgment statute did not apply because the wife was only sued on the debt five (5) years ago at the time of the trial. 

Confusing Orders

Interpretation of prior court orders has earned me a lot of retainers in the past.  One area that can get confusing is on a visitation order whether the weekend visitation overrides the holiday visitation.  I always put a provision to deal with that in my orders.  Without that provision, frankly both parties have reasonably valid positions that the Court will have to sort out. 

Interviewing Children

Interviewing children for any kind of case is always a touchy issue.  Depending on the child's age, interviewing has to be conducted in different ways.  I recently did my yearly renewal on my guardian ad litem certification.  One of the books mentioned at the conference was Handbook on Questioning Children:  A Linguistic Approach.  A copy can be purchased on Amazon here.  I started reading this over the holiday weekend and it does an excellent job in discussing how children of different ages, backgrounds, and ethnicity can be effectively questioned.  This is particularly important in complex custody cases and in the investigation of abuse claims.