Rule 4 for Strangers, Rule 5 for Parties

Service After the Complaint

Rule 4 for Strangers, Rule 5 for Parties

Federal procedure runs two service regimes, and one fact selects between them: has the person to be served already appeared in the action? Rule 4 governs the summons and complaint that bring a person into the case. Rule 5 governs what follows, and Rule 5(a) says which later papers must be served.¹ The sections after this one take up which papers must be served, how service is made, and how filing and proof of service work. This section explains why the two regimes exist and how to tell which one applies.

Initial service of process has a crucial function: it gives notice that an action has been filed.² A stranger to the suit may have no lawyer and no reason to expect papers, so the delivery must be formal and provable. Rule 5 works after that notice has been given. Every later paper must be served on all parties in the action, including later pleadings, motions, trial memoranda, and many other documents.³ The notice problem is already solved, however, because the party has appeared and usually has counsel. Demanding the formalities of initial service for every motion would add expense without telling anyone anything new. Rule 5 therefore lets later documents be served on the other lawyers rather than on the parties, and lets them go by first class mail.⁴

The recipient's status at the moment of service decides which rule applies, and Luyster v. Textron, Inc. shows one recipient moving from one regime to the other inside a single lawsuit. KS Gleitlager filed a third-party complaint against the Government while the Government was a nonparty, so Rule 4's requirements for serving a summons and complaint applied.⁵ The Government then appeared by filing its answer to that third-party complaint. When Superior later filed a cross-claim against the Government, the Government was a party that had already appeared, and the court held that Rule 5 applied rather than Rule 4.⁶ The same recipient was served under two different rules in one case. What changed between the filings was the Government's status as a party.

The cross-claim shows what Rule 5 service looks like in practice. Superior attached a certificate of service showing service on the parties to the case, including the Government's lead attorney of record. The Government offered no argument that service on its attorney under Rule 5 was insufficient or that any prejudice resulted, and the court rejected its request to dismiss the cross-claim for insufficient service.⁷ That result follows from Rule 5(b)(1): if a party is represented by an attorney, service under the rule must be made on the attorney unless the court orders service on the party.⁸

Timing decides the question, and the label on the pleading does not. The court relied on Fluor Engineers & Constructors, Inc. v. Southern Pacific Transportation Co., which recognized that a cross-claim filed before a party appears should be served along with a summons under Rule 4, while service under Rule 5(a) is appropriate once the party has appeared.⁹ Suppose Superior had filed its cross-claim before the Government answered. The Government would still have been a stranger to the case, and the cross-claim would have needed a summons. On an exam, ask first whether the recipient has appeared, and only then ask what kind of paper is being served.

One category of papers falls outside Rule 5 altogether. A subpoena directed to a nonparty, such as a custodian of business records, is governed by Rule 45, which has its own service provisions.¹⁰ The nonparty has never appeared, so nothing has established the contact on which Rule 5's looser methods depend.