The NAPPS Best Practices for Service of Process (BPSOP)
were originally proposed and ultimately adopted by the
membership at the 2005 Annual Conference to articulate this
association’s position on the preferred methods of service of
process. The membership felt that it was necessary to
distinguish its position from a position advanced by the
American Bar Association Best Practices for Electronic
Service of Process (BPESOP). The association felt it
necessary because without a BPSOP it appeared that NAPPS,
in its participation with the ABA Science and Technology
Committee, was endorsing electronic service of process.
The NAPPS BPSOP not only states the association’s policy
position, but also intended to be used to guide for other state
process serving and sheriff’s associations, the Administrative
Office of the US Courts and state legislatures that are
beginning to address electronic service of process laws and
rules in each of their respective forums. The NAPPS BPSOP
may also be used as a basis for developing a Model Rule 4
Act.
The NAPPS BPSOP was amended by the Board in July 2005
and since then this committee has attempted to expand it to
include a position for Secondary Service of documents on
opposition counsel, those services under FRCivP 5, and the
state equivalents. We felt it necessary to address this manner
of service after a more careful reading of the ABA policy
reflected in the “ABA Standard 1.65, Standards Relating to
Court Organization”. That document can be viewed online at: http://www.abanet.org/jd/pdf/standard_1_65.pdf.
That policy encourages courts to eliminate paper filings in
favor of electronically filed documents, and electronic service
on opposition counsel. This policy makes no distinction
between a Rule 5 service effected personally, by mail, or
electronically.
Without distinguishing personal service and electronic
service it equates the two. Equating the two diminishes and
all but eliminates a need for a process server. The lack of
distinction will migrate into Rule 4 services as well.
Therefore, this committee has been attempting to make such a
distinction by adding one to the NAPPS BPSOP that
addresses Rule 5 Secondary Services and adding a 2-day
delay when service is deemed completed. We have presented
it twice to the Board. The Board tabled the discussion in
November, 2005 for consideration at the February, 2006
meeting. In February, a motion to adopt adding the Rule 5
Secondary Service provision to the NAPPS BPSOP was not
seconded, and thus never publicly discussed.
Privately, some Board members have expressed some
reluctance to adding a Rule 5 provision to the BPSOP. One
comment was “we don’t serve those anymore”. Another said
“those services are already lost.”
This committee also suggested including commentaries to
each BPSOP to further explain our reasoning. By example,
we provided a small sampling of “click-wrap” or “clickthrough”
End User License Agreements (EULA) that are
including service of process provisions, such as agreeing to
jurisdiction, service on the secretary of state and service by
email.. The click wrap term refers to the consent to the “terms
and conditions” of the use of a software product that occurs
by opening the clear shrink wrap and installing and using it.
A Wikipedia definition can be found here:
http://en.wikipedia.org/wiki/Clickwrap, including some
leading appellate decisions that have upheld them. Those
examples may be included in this newsletter, space
permitting, and are also posted on the Standards and Best
Practices Blog page at: http://members.tripod.com/t_klein/NAPPSSBPBlog.
This Committee also suggested the creation of a Model Rule
4. The Board has tacitly agreed to these latter two proposals.
So the NAPPS BPSOP does not make a distinction between
Primary and Secondary Service, and thus continues to
endorse electronic service of process on opposition counsel as
an equivalent to personal service. This will dampen the
impact our BPSOP may have on differentiating an effective
date between personal service and electronic service.
We hope that the Board will re-consider this proposal at the
next Board Meeting.
This committee consists of eight members who are reviewing
and commenting on these proposals. They are myself, Steve
Janney, Lee Russell, Bruce Lazarus, John Healy, Pete
Schilleci, Felina Carice Swaba, and Lisa Beaver.
Examples of End User License Agreement (EULA)
Terms and Conditions Relating to Service of Process
SONY athttp://musicstore.connect.com/promos/dc/tos.html
You agree to submit to the exclusive jurisdiction and venue of these courts and
waive any jurisdictional, venue or inconvenient forum objections to such
courts. THE PARTIES SHALL NOT RAISE IN CONNECTION THEREWITH,
AND HEREBY WAIVE, TRIAL BY JURY AND/OR ANY DEFENSES BASED
UPON THE VENUE, THE INCONVENIENCE OF THE FORUM, THE LACK
OF PERSONAL JURISDICTION, THE SUFFICIENCY OF SERVICE
PROCESS OR THE LIKE IN ANY SUCH ACTION OR SUIT.
Waiver of disputing
sufficiency of service of
process.
Digital Dental Strategies, Inc. athttp://www.dds.com/eula.asp Applicable Law, Jurisdictional Matters
This Agreement shall be governed by and construed in accordance with the
laws of the State of California and the United States of America. The federal
and state courts of the State of California located in Los Angeles County shall
have exclusive jurisdiction to adjudicate any dispute arising out of this
Agreement. You expressly consent to (a) the jurisdiction of such courts; and
(b) service of process being affected upon you by registered mail sent to the
address you provide DDSI in conjunction with your subscription for services,
as may be changed from time to time by written notice actually received by
DDSI. Unless prohibited by the law of your jurisdiction, you waive any
requirement that service of process or of any documents be made upon you
pursuant to the provisions of the Hague Convention.
Consent to service by
registered mail, and
waiver of any
requirement that
service of process or
any document may be
made pursuant to the
Hague Convention.
Trading the Open athttp://www.tradingtheopen.com/disclaim.htm
11) VENUE: This User Agreement shall be governed by the laws of the State
of Colorado, excluding any rule or principle that would refer to and apply the
substantive law of another state or jurisdiction. To the extent allowed by
applicable law, any claims or causes of action arising from or relating to your
access and use of DTU/TTO contemplated by this User Agreement must be
instituted within two (2) years from the date upon which such claim or cause
arose or was accrued. Further, any such claim or cause of action may only be
brought in the state or federal courts located in Colorado, and you agree to
submit to the exclusive personal jurisdiction of such courts and hereby appoint
the Secretary of State of Colorado as your agent for service of process.
Appointment of the
Colorado Secretary of
State as agent for
service.
Dodge Truck World athttp://dodgetruckworld.tenmagazines.com/tos.ten 14. APPLICABLE LAW AND JURISDICTION This Site (excluding links) is
controlled and operated from the TEN Magazines offices in Corona, California
USA. You agree that all matters arising from or relating to the use and
operation of the Site and Services shall be governed by the laws of the State
of California and the United States of America, without regard to conflicts of
laws principles. This Agreement also shall be governed by and construed in
accordance with the laws of the State of California and the United States of
America. The federal and state courts of the State of California located in San
Francisco, California USA shall have exclusive jurisdiction to adjudicate any
dispute arising out of this Agreement or arising from or relating to the operation
or use of the Site or Services. You expressly consent to (i) the personal
jurisdiction of such courts over you; and (ii) service of process being effected
upon you by either email or registered mail sent to the address you provide
TEN Magazines in connection with your subscription for services. Unless
prohibited by the law of your jurisdiction, you waive any requirement that
service of process or of any documents be made upon you pursuant to the
provisions of The Hague Service Convention.
Consent to service of
process by email
unless prohibited.
