Covid-19 and Service of Process

During the initial Covid-19 outbreak, businesses world-wide scrambled to implement new policies to help keep premises clean, customers safe, and social distancing the “new norm.” Many stores used methods such as signage to direct foot traffic and require the wearing of masks, stickers on the floor near registers telling people where to stand to remain six feet apart, and the creation of new curbside delivery options to keep customers happy and supplied, while staying outside.

The United States Postal Service was no exception. USPS drop-off locations implemented many of the same strategies that other companies did, but also had the difficult task of delivering millions of pieces of mail to customers every day. With thoughts on how to keep both mail carriers and customers safe, the United States Postal Service also implemented modifications to its routine regarding the delivery of certified mail.[i] Following a media statement regarding Covid-19 on April 2, 2020, USPS mail carriers began following the new procedures, which mainly applied to signature service items.[ii] The new routine, spelled out on the USPS website, instructed letter carriers to: 1) avoid ringing doorbells, and knock when possible; 2) request the customer’s first initial and last name; 3) ask the customer to stand back at a safe distance while the mail carrier left the items of mail; and 4) follow the normal Notice Left process if there was no customer response.[iii] Mail carriers at the time also occasionally notated “Covid-19” or “C19” in the signature line on the certified mail return receipt in addition to, or sometimes in lieu of, providing the customer’s name.[iv]

While this strategy seemed reasonable at the time, especially because of the quick decisions the USPS was required to make to keep the mail running daily, it did end up posing an interesting legal question that has now been addressed by several courts. Specifically in Ohio, the Southern District Western Division for the United States District Court addressed the question of whether summons delivered during the Covid-19 pandemic, while lacking a valid signature, satisfies proper service of process.[v]

This is an important question, because “service of the summons and complaint is the procedure by which a court having venue and [subject matter] jurisdiction asserts [personal] jurisdiction over the party served.”[vi] Simply put, according to the foundational principles of civil procedure, if a party is not properly served a summons and complaint, the court will not have the power to exercise personal jurisdiction over the defendant.[vii] If a defendant has not been properly informed that there is a lawsuit pending against him, he will not be able to properly defend himself in court.

In Finnell v. Eppens, the court addressed the question in regards to Mr. Eppens, the defendant who worked in the Hamilton County Justice Center, and Mr. Finnell, the plaintiff who was incarcerated there.[viii] After Finnell and Eppens had an argument involving Finnell’s lunch, Eppens ordered him to return to his cell.[ix] When Finnell refused, Eppens allegedly directed racial slurs at him, threw him into a wall, and struck his left eye with a closed fist.[x] Finnell afterwards sued Eppens on the grounds that Eppens’ conduct amounted to excessive use of force in violation of Finnell’s constitutional rights.[xi] The main issue in the case lay in whether Eppens was properly served the summons and complaint.[xii]

The court in Finnell recognized that Covid-19 posed a serious problem to the case, in that when the USPS delivered the certified mail to the Justice Center where Eppens worked, the mail carrier signed the return receipt “CO-19.”[xiii] As a result, no one at the Justice Center technically signed for the letter.[xiv] Eppens argued that, among other things, the lack of signature “doomed any claim to proper service under Ohio law.”[xv]

In actuality, the Federal Rules of Civil Procedure as well as Ohio law supplies a detailed outline for how to properly serve a summons to a party in a case.[xvi] Most applicable to this case, the FRCP provides that an individual may be served by following state law for serving a summons in the state where the district court is located.[xvii] The Ohio Rules of Civil Procedure, which were discussed by the court in Finnell, provides that a commercial mail carrier may deliver the summons to the individual’s address, and must return a signed receipt showing “to whom [the mail] was delivered, the date of delivery, and the address where it was delivered.”[xviii] The Finnell court determined that the broad scope of who may sign for certified mail at the individual’s address did not extend to the mail carriers themselves.[xix]

Additionally, the Southern District addressed the signature issue on December 29, 2020, by issuing General Order 20-39, entitled “Service of Process by Certified Mail During the COVID-19 Pandemic.”[xx] This order took into account the peculiarities of the pandemic and allowed that “service of process may be evidenced by …notations of ‘COVID,’ ‘COVID-19,’ or other similar notations.”[xxi] Fortunately, at least in Eppens’ case, the court issuing the Order did not make the order retroactive, and therefore, it could not be deemed to be in place in October 2020, when Finnell first attempted to serve Eppens the summons and complaint.[xxii] As a result of considering both the Federal and Ohio Rules of Civil Procedure as well as the timeline for the Southern District’s General Order, the court held for Eppens on the signature issue, finding that the summons and complaint were not validly served.[xxiii]

The Ohio Court of Appeals, First District, has now seen fit to address the question on appeal in CUC Properties VI, LLC v. Smartlink Ventures, Inc., in which Smartlink was served a summons and complaint from CUC Properties after Smartlink vacated its leased property during the midst of the Covid-19 pandemic.[xxiv] As in Finnell, the mail carrier who delivered the summons and complaint from CUC to Smartlink also wrote “Covid 19” and “C19” on the signature lines of the certified mail return receipts.[xxv] Smartlink did not reply to the summons, and as a result, the court granted a default judgment in favor of CUC.[xxvi] Smartlink later appealed.[xxvii]

In its analysis, the court laid out a logical roadmap for finding whether a trial court has personal jurisdiction over a defendant.[xxviii] The conclusion to which it came was that a “valid court judgment requires both proper service under the applicable Ohio rules and adequate notice under the Due Process Clause.”[xxix] The court reviewed the Finnell holding and agreed that there is no specific Ohio law that permits a change to the signature requirement based on Covid-19.[xxx] Although CUC argued that an administrative action by the Ohio Supreme Court enabled the Hamilton County Court of Common Pleas the power to waive any rule requiring in-person service of process, the Ohio Court of Appeals held that, because the County had issued no such order, Smartlink’s assignment of error should be sustained.[xxxi]

We may see more of these cases in the coming months as Covid-19 still affects America’s everyday comings and goings. But with states like Ohio addressing the issue head-on while the topic is still fresh, hopefully the logical argument has been made that our courts should uphold state and federal rules of civil procedure.

[i] U.S. Postal Serv. Coronavirus Updates for Residential Customers, https://faq.usps.com/s/article/USPS-Coronavirus-Updates-for-Residential-Customers (last visited Oct. 2, 2020).

[ii] Id.

[iii] Id.

[iv] CUC Properties VI, LLC, v. Smartlink, No. C-210003, 2021 WL 4453670, at *1 (Ohio Ct. App. Sept. 29, 2021).

[v] See Finnell v. Eppens, No. 1:20-cv-337, 2021 WL 2280656, at *1, *5 (S.D. Ohio W. Div. June 4, 2021); see also Towne v. Benefytt Technologies, Inc., No. 2:21-cv-2990, 2021 WL 3847822, at *1, *2 (S.D. Ohio E. Div. Aug. 27, 2021).

[vi] See supra iv, at *5, quoting During v. Quoico, 2021-Ohio-2990, 973 N.E.2d 838, ¶ 25 (10th Dist.), quoting Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946).

[vii] Id.

[viii] Finnell v. Eppens, No. 1:20-cv-337, 2021 WL 2280656, at *1, *5 (S.D. Ohio W. Div. June 4, 2021).

[ix] Id. at *1.

[x] Id. at *2.

[xi] Id.

[xii] Id.

[xiii] Finnell v. Eppens, No. 1:20-cv-337, 2021 WL 2280656, at *1, *5 (S.D. Ohio W. Div. June 4, 2021).

[xiv] Id. at *3.

[xv] Id.

[xvi] Fed. R. Civ. P. 4(e)(1)-(2).

[xvii] Id.

[xviii] Ohio Civ. R. 4.1(A)(1)(b).

[xix] Finnell v. Eppens, No. 1:20-cv-337, 2021 WL 2280656, at *1, *5 (S.D. Ohio W. Div. June 4, 2021).

[xx] Id.

[xxi] Id.

[xxii] Id. at *6.

[xxiii] See supra xix, at 5.

[xxiv] CUC Properties VI, LLC, v. Smartlink, No. C-210003, 2021 WL 4453670, at *1, *2 (Ohio Ct. App. Sept. 29, 2021).

[xxv] Id.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] CUC Properties VI, LLC v. Smartlink, No. C-210003, 2021 WL 4453670, at *1, *2 (Ohio Ct. App. Sept. 29, 2021).

[xxx] Id. at *3.

[xxxi] Id. at *4.