A word for the wise from the Second Circuit: Serve your complaint

Sunday, September 5th, 2010
By: Jonathan MontagJ.D.

Today I will take a break from hair-splitting and soul-searching immigration law analysis to look at a peculiar case out of New York, the Second Circuit’s decision this week in Kurzberg v. Ashcroft. The case that can now serve as the archetype for explaining the aphorisms, “Penny Wise and Pound Foolish,” “A Stitch in Time Saves Nine,” as well as the aphorism contrapositive, “Fix it if it’s broke.”

The plaintiffs in the lawsuit were a group of Israelis who apparently were observed photographing the World Trade Center attacks from their apartment in Jersey City, New Jersey, and also acting suspiciously gleeful. They were arrested and then held in a federal detention center in Brooklyn. The lawsuit concerns seeking damages for what they assert was unlawful arrest and treatment. The incident was important as it was central to many conspiracy theories about the 9-11 attacks.

The five filed their lawsuit as a Bivens Action, suing government officials in their individual capacities for doing illegal things that they should not have immunity for doing. According to the Federal Rules of Civil Procedure, Rule 4(i), as part of filing a Bivens action, the plaintiffs must serve their lawsuit by certified or registered mail on the Attorney General and the U.S. attorney for the local district where they are suing government officials. The plaintiffs did not accomplish this service. The U.S. attorney contacted their attorney and told them their service was deficient. Then a magistrate told them their service was deficient and gave them an extension of time to perfect service. Three days before the deadline, the attorney served the complaint by first class mail. Finding service deficient, the court of appeals dismissed the lawsuit.

A word for the wise (litigating lawyer). Go to the post office and get those green postcards and green labels for certified mail and keep them in a drawer in your office. When you need to sue the government, after you file the lawsuit, make a bunch of copies and send them to all the defendants. If the defendants work for the government, send the complaints to the government through the government’s lawyer, the attorney general. Take out the green postcards and labels and fill them out and use them to mail the complaints. When the green postcards come back, scan them and file a proof of service with the court. It may cost about $10 to serve the Attorney General and the U.S. Attorney in this way. Another word for the wise, if you get two warnings that service is deficient in your lawsuit, fix your mistake and serve your lawsuit properly. The cost of appealing the dismissal of your lawsuit to the court of appeals is 35 times the cost of the postage. The cost in legal fees is hundreds (if not thousands) of times greater. The cost in embarrassment in blowing your history-making lawsuit because you were too cheap to pay postage, priceless – especially when the court of appeals decides to publish a panel decision enunciating the rule of law that you must serve your lawsuit.  Posted September 5, 2010.


2 Responses to “A word for the wise from the Second Circuit: Serve your complaint”

  1. Did they hire a Jewish lawyer?

    So if your attorney screws up like this, what are your options? Are there any expectations that the attorney will try to fix it for free?

    1. There are statute of limitations on filing lawsuits. I read that for this type of case, it is now too late. The plaintiffs could go after the lawyers for damages based on their errors. They would have to show they would have won. The lawyers would then be placed in the position of proving that the lawsuit was b.s. and the plaintiffs would have won nothing. Attorney-client confidents would also likely be waived and so we would hear what those five chuckle heads were really up to — if they actually told their lawyers.

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