We missed this when it came out, but Judge Fallon issued an opinion in March that addressed whether a defendant could evade service of process by, he claims, not opening the door when the process server tried to serve him.
In Pelham v. Vbit Techs. Corp., C.A. No. 23-162-JLH-SRF (D. Del.), a securities action, the plaintiff filed a Return of Service from their process server stating that they had served one of the defendants by personally delivering the complaint to the defendant at home—but the defendant disagreed:
On March 17, 2023, Plaintiffs filed a Return of Service, of the original summons and complaint. (D.I. 6) The affidavit of the process server states that on March 7, 2023, he personally served Jin Gao at his residence. . . . Subsequently, on April 5, 2023, Gao's counsel emailed Pelham's counsel, who filed the Return of Service, informing counsel that Gao was not personally served. . . . Gao's counsel did not receive a response from Pelham's counsel.
Id., D.I. 70 at 13.
The defendant submitted what he claimed was doorbell camera video to rebut the claim that he was served—but the Court did not consider that video, because the defendant did not file or cite it correctly:
Gao asserts the Ring doorbell camera video footage shows the process server leaving the complaint and summons at the doorstep without delivering them to anyone in the residence. (Id.) The video footage allegedly demonstrating a defect in service of process has not been entered on the public docket for this case. There is no link to the video in Gao's brief or affidavit so there is no means to access it on the public docket. Moreover, in his affidavit, Gao interprets what he believes the video shows but does not provide any reference to the particular segment of the video by timestamp or any other reference guidepost. In summary, the video has not been properly submitted for consideration by the court.[4]
[4]Gao delivered a USB drive to the court without a notice of service and without identifying anything about it on the public docket to authenticate it or confirm delivery to the court and the parties.
Id. The plaintiffs claimed the video actually showed the process server speaking to someone in the house:
In opposition, Plaintiffs counter Gao's claims with their own account of what the doorbell video footage shows. Plaintiffs contend that service was perfected because the video shows the process server speaking and showing the papers to an individual inside of Gao's home outside of the camera frame. Plaintiffs state that after the process server showed the documents toDefendant, he left the papers on the doorstep.
Id. at 13-14. The defendant pushed back, saying he doesn't answer the door unless he is expecting someone:
Gao states in his affidavit that he could not have accepted service of the complaint because he does not answer the door unless he is expecting a guest. (D.I. 44-1 at 1 15) Gao further states because he receives other package deliveries throughout the day, he would not likely respond to someone ringing his doorbell. (Id.) Accordingly, Gao argues service of process is deficient.
Id. at 14.
Ultimately, the Court credited the plaintiff, holding that it was required to resolve any factual conflicts in the plaintiff's favor:
Considering the competing affidavits submitted by both parties, the Court must resolve any factual conflicts in Plaintiffs' favor. Senju Pharm. Co., Ltd. v. Metrics, Inc., 96 F. Supp. 3d 428, 445 (D.N.J. 2015) (holding the court must "accept the uncontroverted allegations in the plaintiff's complaint as true and resolve any factual conflicts in the affidavits [and other written materials] in the plaintiff's favor[]" on a motion to dismiss for lack of personal jurisdiction).
The Court also noted that, under Third Circuit precedent, a defendant can't just dodge service by refusing to accept the papers:
The Third Circuit holds that "[i]f the defendant attempts to evade service or refuses to accept delivery after being informed by the process server of the nature of the papers, it usually is sufficient for the process server . . . simply to leave them in the defendant's physical proximity, as Rule 4 guards the objective of giving notice to the party to be served." Gambone v. Lite-Rock Drywall Corp., 124 F. App'x 78, 79 (3d Cir. 2005) (cleaned up) . . . . Gao effectively admits there is no likelihood he would accept personal service because he states in his sworn affidavit, "I usually do not answer the door when the doorbell rings unless I am expecting someone." . . .
The court recommends that service of process was perfected on Gao when he was personally served at his residence with the original complaint on March 17, 2023 . . . . It would exalt form over substance to require Plaintiffs to make further attempts at personal service on Gao who admitted he does not answer his doorbell unless he is expecting a guest.
Id. at 15.
It's interesting to see how this turned out—particularly that the Court held that it must resolve any factual conflicts in the plaintiff's favor in the context of a dispute about service of process under FRCP 12(b)(5).
Citing Video: Don't Mess It Up
The Court's refusal to consider the video was also interesting. I've seen differing opinions on how to best handle citing video to the Court. Traditionally, it would be delivered to the Clerk's office, and a party would file a "notice of multimedia filing" to alert the Court. But parties also cite things by including the URL of an online video.
The Court's opinion above suggests that either method would be OK, but holds that simply dropping a USB stick off at the Clerk's Office "without a notice of service and without identifying anything about it on the public docket to authenticate it or confirm delivery to the court and the parties" is not enough.
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