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Service OK Despite ‘Technical’ Error

Although the address used for service of process on defendant in this auto-accident case was for “Blue Sky Road, instead of Blue Sky Drive, the mere technical error had no impact on effective service of process, with the result that defendant’s removal to federal court was untimely; a Richmond U.S. District Court grants plaintiff’s motion to remand to state court.

Although Fed. R. Civ. P. 4(e)(1) incorporates state law methods for service of process, the effectiveness of service remains a procedural matter governed by federal legal standards.

Here, plaintiff has submitted an affidavit of service from the Secretary of the Commonwealth which shows that service was made on May 19, 2011, and the Secretary forwarded the pleadings to defendants at the correct address, save for the technical error that the word “Road” was employed instead of the word “Drive” in the address. The evidence establishes the materials mailed by the Secretary actually arrived at the intended destination, regardless of whether the address identified “Drive” or “Road.” The sole issue is whether, as a matter of law, the discrepancy in the address caused service on the Secretary to be ineffective.

Defendants cite McIntyre v. Wright [VLW 094-8-132], for the proposition that the exact proper address must be used by the Secretary for service to be proper pursuant to Va. Code § 8.01-329. The situation in McIntyre is very different from the situation now before the court. Here, plaintiff provided a slightly incorrect address which was nevertheless sufficient to ensure that the documents actually arrived at the intended location—defendants’ last known address. It is not the case that the Secretary sent the pleadings to the wrong address, as those pleadings actually arrived at defendants’ residence.

Where, as here, a mere technical error has had no effect whatsoever on the effectiveness of service, such an oversight is immaterial. Service of process was effective in this case so as to commence the deadline for removal to federal court.

It is also of no import that defendant’s wife did not actually give the pleadings to him. Because the pleadings arrived at the intended address, it is irrelevant whether defendant actually received them, at least for purposes of determining whether statutory service is effective. The court concludes that service was made on defendants in accordance with Va. Code § 8.01-329, and that such service was effective at least as early as May 31, 2011.

Defendants’ attempt to remove the matter from state to federal court on Nov. 4, 2011, was untimely.

Motion for remand granted.

Hackworth v. Bryan (Dohnal) No. 3:11cv728, Jan. 12, 2012; USDC at Richmond, Va. VLW 012-3-009, 6 pp.

VLW 012-3-009

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