The Law Behind The Mo Brooks Service Of Lawsuit Dust Up

Back in early March Representative Eric Swalwell sued Donald Trump, Trump Junior, Rudy Giuliani and fellow Representative Mo Brooks for damages he alleges he suffered by their incitement of the January 6th riot. This post is not about the merits of that action. If you are interested in that you can read a summary of the Complaint that I did HERE.

After filing a lawsuit with a court the next thing Plaintiff must do is serve it on all the defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure. There are basically two means of effectively doing this:

1. Physically. A favorite device in movies where the lawsuit is often dramatically presented to the defendant, often via trickery, and/or through the machinations of a pretty girl. The rule allows the Plaintiff’s representative to give the lawsuit to the defendant or by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.” So the rule allows for the plaintiff’s representative to knock on the Defendant’s door, and hand the document to the Defendant’s spouse, but generally not to the Defendant’s minor children.

2. Ask the Defendant to waive direct or personal service in lieu of service by mail. Plaintiff mails a copy of the Complaint to the Defendant and gives the Defendant 30 days to waive personal or direct service. The rule rather directly states that the Defendant “has a duty” to waive personal service “to avoid unnecessary expenses of serving the summons.” The rule provides both a carrot and stick to encourage defendants to accept waiver of direct service. The carrot is that if the defendant does so he gets 60 days to respond to the Complaint whereas if he refuses waiver he gets only 21. The stick is that “If a defendant . . . fails, without good cause, to sign and return a waiver requested by a plaintiff . . . the court must impose on the defendant the expenses later incurred in making service.”

Notwithstanding this carrot and stick, and duty, Mo Brooks refused to waive personal service. He then successfully dodged anyone attempting to personally serve him. This cat and mouse game went on for weeks. So Swalwell hired a private investigator to complete personal service. Yesterday, under disputed circumstances, that person managed to serve the Complaint to Brooks’ wife at their house.

Brooks claims the investigator sneaked into the house, committing a trespass, frightening his wife and children. I very much doubt that happened, but that’s what he claims. Swalwell denies that happened. More likely is something like out of the movies. The investigator, perhaps disguised as package delivery guy, rang the doorbell and surprised Ms. Brooks with the Complaint.

In any event, if the investigator did sneak into the home, that’s a problem. Criminal charges could be advanced. Otherwise it is not. If the service of the lawsuit was in accord with the law then Mo Brooks must answer within 21 days (not 60) and the court must impose on Representative Brooks the costs Swalwell incurred in effecting personal service.



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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80