Issue: Under the federal rules as applied in the Ninth Circuit, is service of process through FedEx valid?
| Area of Law: | Litigation & Procedure |
| Keywords: | Service of process; Fedex, Federal Express delivery; Validity |
| Jurisdiction: | Federal |
| Cited Cases: | 85 F.3d 1424 |
| Cited Statutes: | Rules 5(b), 11(b)(1)(A); Rule 11(c)(1)(A) |
| Date: | 02/01/2001 |
Where a party has attempted to serve another using FedEx, service has not been properly accomplished as required by Rules 5(b) and 11(b)(1)(A). See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9th Cir. 1996). (“Thus, we hold that Federal Express does not satisfy the requirements of Rule 5(b).”). If the “Proof of Service” of a motion demonstrates that Defendants delivered the instant Notice of Motion, Motion and supporting papers via Federal Express, it will not be valid. However, Rule 11(c)(1)(A) provides that a motion for sanctions “shall be served as provided in Rule 5.” Rule 5, in turn, provides for personal service and service by mail but not service by private courier. See Rule 5(b).
The Ninth Circuit has explicitly held that Federal Express delivery does not satisfy the requirements of Rule 5(b). Magnuson, 85 F.3d at 1431. Moreover, even actual notice is not a permissible substitute for the type of service mandated by Rule 5. Id. Unless the party who has the burden of service demonstrates “exceptional good cause” for its failure to comply with Rule 5(b), service by other means is invalid. Id.
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