Australia Court Okays Service Through Facebook

Reading the ABA Journal - Law News Now's In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook, I am not at all sure how Indiana courts would deal with this issue.

"Updated: In an apparent first in Australia and, possibly, the world, a judge has OK'd a plan to serve a default judgment on a non-appearing defendant via a social networking website.

Although service previously has been allowed by e-mail and text message, a master of the Supreme Court of the Australian Capital Territory has gone a step further into the Internet world by allowing a default judgment to be served on Facebook, reports the Sydney Morning Herald.

The court okayed the Facebook approach, a Herald Sun article explains, after all other efforts failed, according to attorney Mark McCormack, who represented the creditor side in the mortgage foreclosure case.

From what I am seeing in this article, it would be my guess (guesses are all that lawyers really have until an appellate court weighs in on a topic except that we get to call them arguments) is that the following Indiana Trial Rules apply:

Rule 4.5. Summons: Service upon resident who cannot be found or served within the state

When the person to be served is a resident of this state who cannot be served personally or by agent in this state and either cannot be found, has concealed his whereabouts or has left the state, summons may be served in the manner provided by Rule 4.9 (summons in in rem actions).

***

Rule 4.9. Summons: In rem actions

(A) In general. In any action involving a res situated within this state, service may be made as provided in this rule. The court may render a judgment or decree to the extent of its jurisdiction over the res.

(B) Manner of service. Service under this rule may be made as follows:

(1) By service of summons upon a person or his agent pursuant to these rules; or

(2) By service of summons outside this state in a manner provided by Rule 4.1 (service upon individuals) or by publication outside this state in a manner provided by Rule 4.13 (service by publication) or outside this state in any other manner as provided by these rules; or

(3) By service by publication pursuant to Rule 4.13.

Much more prosaic than the Australian case but remember this is Indiana







and not Australia

Indiana Commercial Foreclosure Law: In Indiana, A Summary Judgment Is Preferable To A Default Judgment

Today,I am borrowing from Indiana Commercial Foreclosure Law blog. Its post, In Indiana, A Summary Judgment Is Preferable To A Default Judgment, may be a bit too much of a technical issue but this is something both lawyers and non-lawyers need to know about:

"Is notice documented? An important matter, implicit in the Anderson opinion, is to prove that the defendant had notice of the summary judgment proceedings. In instances of unrepresented parties, one way to do this is to provide the party, by certified mail, with copies of the motion and any order setting the matter for hearing. (A hearing is not mandated by T.R. 56, unless a party requests one, but it is fairly common for Indiana trial courts to hold a hearing.) Lender’s counsel then can attach the letter(s), with the certified mail return receipt(s), to an affidavit for submission to the court. If the plaintiff can show that the defendant had actual notice of the proceedings, but failed to take any action, then such proof reduces dramatically the chances of setting aside the judgment in the trial court or overturning the judgment on appeal. Conversely, the easiest way for a defendant to get a second chance is to convince a court that it did not know about a motion or a hearing."

Employment Law: Federal FMLA Jury Instructions

The Indiana Daily Lawyer reports that the 7th Circuit Pattern Jury Instructions Committee is accepting public comments on jury instructions for Family Medical Leave Act cases. The IDL had the following contact information:

Comments should be e-mailed to U.S. District Court, Northern District of Indiana Chief Judge Robert L. Miller Jr. at Robert_Miller@innd.uscourts.gov with a subject line of "Pattern FMLA Instruction Comment" or mailed to the judge at U.S. District Court for the Northern District of Indiana, 204 S. Main St., South Bend, IN 46601. Comments will be accepted through June 30.

A copy of the FMLA draft for notice and comment is available on the Northern District's Web site.

Indiana jurisdiction over out-of-state defendants

How do Indiana courts have jurisdiction over people and businesses not residing Indiana courts? After all, Indiana's civil jurisdiction ends at its borders.

Indiana's Trial Rule sets out how to get jurisdiction. Indiana Trial Rule 4.4 (Service upon persons in actions for acts done in this state or having an effect in this state) sets out the categories of actions by defendants which give Indiana court's jurisdiction over those defendants.
What neither the courts nor out-of-state businesses wants is to be brought into an Indiana court for an inadvertent incursion to Indiana. The law gives weight to the amount of contact an out-of-state defendant has with Indiana. Where defendant's the only contacts are by telephone
and without personal appearance in Indiana and it is the Indiana plaintiff initiating contact, Indiana law makes it very difficult to have jurisdiction over the out-of-state defendant. See Dura-Line Corp. v. Sloan, 487 N.E2d 469 (Ind. Ct App. 1986) and Baseball Card World, Inc. v. Pannette, 583 N.E.2d 753 (Ind. Ct App. 1991), trans. denied..

Indiana businesses need to be careful about dealing with out-of-state persons. Consulting with a lawyer about the problems of operating outside of Indiana is far cheaper than trying to collect a debt in another state.

New Trademark Blog and Declaratory Judgments

What is a declaratory judgment suit? I am glad you asked that question as I found a very good description of declaratory judgment suits in Dilution by Blurring's Declaratory Judgment Actions. Here is the question's answer from the article:

What is a “declaratory judgment”? A declaratory judgment is a judgment from a court that declares the rights of the parties in a dispute.

When would someone file an action for a declaratory judgment? Typically, a person files a declaratory judgment action when another person threatens them with litigation. In the trademark context, if Apple, for example, threatened to sue BlueAir for trademark infringement and BlueAir does not think that they are infringing Apple’s mark, then BlueAir can file a “dec action” in federal court to have the court determine who’s right as they did in this case.

I never get to use declaratory judgments very often but they do have their limits - as noted in the article.

From what I have seen, I like Dilution by Blurring. The blog takes on trademark law in a way that business owners as well as lawyers can understand.

Glossary: Summary Judgment

Not every case goes to trial. Trial Rule 12(B) lists a bunch of reasons for getting rid of a case without a trial Trial Rule 56 allows for getting rid of a case by summary judgment.

Summary judgment means that there is no dispute of material fact and the party filing the motion is entitled to a judgment as a matter of law. Notice the rule requires that the material facts be agreed upon and not all facts. Otherwise, the matter goes to trial.

As I tell my clients, anyone can file anything but whether they will get anything for their troubles is a different story. The procedural rules provide ample opportunity for factually baseless lawsuits to end well before trial. That these rules exist for early termination of factually baseless lawsuits is my chief reason for doubting the need for tort or litigation reform. Three reasons come to my mind for why a lawsuit does not terminate before trial (other than settlement): 1) the defendant's counsel does not use the procedural rules properly, 2) the defendant's counsel does not know to use the procedural rules properly, or 3) there is a dispute of facts needing a trial.

Time is the enemy

Always remember that time is the enemy in any legal matter - more so than any other factor. You need to act within such and such time and not doing so can end the case. Here is an example from the family law side of things: Paternity of D.T.B., a child born out of wedlock; Andre D. Barr v. Paula J. Frison (NFP). (Yes, it is a not-for-publication case but it does a good job of iillustatrating the problem of procrastination). Waiting six years exceeds any idea of reasonableness.

How not to handle a judge

Masson's Blog posted about this Chicago lawyer backtalking a bankruptcy judge. Go see the post here. I am surprised that the judge did not through the idiot in jail.

Steps in a lawsuit - from service to filing an Answer

I thought a series of posts about the steps in a lawsuit might be useful. This will be the first part of a series about the general procedure in civil lawsuits. Small claims have a wholly different procedure and I suggest you look at the small claims rules if you are looking for information on small claims cases. I am not going into all the nooks and crannies of civil procedure but just the broad generalities.

After filing the Complaint and Summons with the County Clerk, serving the defendant is the next step. In some counties the person serving the Complaint is a Sheriff's deputy and in others it is a bailiff.

By the way, Indiana's Trial Rules have eighteen rules solely about service. See Indiana Trial Rule 4 to 4.17.

If the defendant cannot be served personally, then there is service by certified mail and by publication. The case cannot go forward if the defendant cannot be served. Service is part of the constitutional right of due process.

The defendant then has a certain amount of time for responding to the Complaint depending on the type of service. The response is called an Answer. For personal service, the time is 20 days. Expect that to be extended by the defendant. Usually, the extension runs another 30 days. That is if the defendant gets an attorney or knows the Indiana Trial Rules.

If the defendant does nothing by the 20th day, the rules allow for a default judgment. Just as if it were a ball game, one wins if the other side does not show up.

I wrote the defendant must file an Answer. This is not precisely true. The defendant may file a Motion to Dismiss, or an Answer. If the defendant files a Motion to Dismiss, the judge must rule on the motion before the case can continue. If the judge denied the defendant's motion, then the defendant must file an Answer. If the judge grants the motion, the Plaintiff may have be out of a case or find a way to get back in.

What comes after the Defendant files an Answer? Not trial, but what we call discovery. That is for another post.

Electronic Discovery - new article

One more for any lawyers seeing this blog and for business owners. Law.com's Legal Technology page has a new article on electronic discovery: E-Evidence: Who Let the Dogs Out?. I am still pondering the full meaning of these paragraphs:

When will we see that clients self-immolate far more often through incomplete production than inadvertent production?

We need to devote more time to thinking about what the evidence is instead of where it lodges. Too often, we fixate on the containers — the e-mail, spreadsheets and databases — with insufficient regard for the content. This isn't just a rant against producing parties. I see the failure as well in requesting parties determined to get to the other side's tapes and hard drives but unable to articulate what they're seeking.

Electronic discovery - keeping records

The January 2004 Law Practice Today (yes, the issue has been around that long) has an interesting article on record retention policies. While geared towards lawyers, I suggest that business owners might want to take a look at the article. The writer outlines the importance of a record retention policy, the problems of retaining records and possible solutions. Here is the conclusion to the article:

Demonstrating to the Court the existence of a reasonable, well thought out, comprehensively distributed, and carefully adhered to and monitored records preservation and retention program with rigorously enforced penalties for non-compliance is critical in limiting the exposure of a client, its management, and its attorneys to potentially serious statutory and spoliation sanctions. A proactive records preservation retention program can also help prevent a potentially ruinous criminal prosecution for obstruction of justice and protect the organization’s outside counsel itself from claims of negligent representation or even malpractice.