Across the nation, authorities are scrambling to meet the new challenges posed by COVID-19. The United States Centers for Disease Control and Prevention (“CDC”) has recommended that individuals remain six feet apart in order to prevent the spread of COVID-19. On March 13, 2020, the White House proclaimed a national emergency and many State governments have ordered non-essential businesses to close, and residents to self-distance. However, these emergency measures conflict with the rules for personal service of process established by Federal Rule of Civil Procedure 4.
Personal service of process is among the oldest and commonest means by which a court can obtain personal jurisdiction over a defendant. F.R.C.P. 4(e) provides that personal service of process can be accomplished by handing the process papers to the defendant personally or leaving the papers with a responsible person at the defendant’s dwelling.
In most cases, personal service involves the physical act of handing papers from one person to another. The very act of accomplishing personal service therefore violates the CDC’s recommendation that individuals remain six feet apart. However, it can also run contrary to more stringent restrictions imposed by State governments.
For example, in New Jersey, Governor Phil Murphy issued Executive Order No. 107 which states that “individuals must practice social distancing and stay six feet apart whenever practicable.” (Available here: https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf). Violators are subject to a disorderly person charge, and risk “imprisonment for a term not to exceed 6 months or shall pay a fine not to exceed $1,000.00 or to both…” See N.J.S.A. A:9-49 and -50.
A process server who accomplishes service in accordance with F.R.C.P. 4(e) risks violation of New Jersey law, and possible imprisonment.
Similar conflicts have arisen in other States that have implemented emergency measures to prevent the spread of COVID-19. In recognition of this tension, the New York’s Governor Andrew Cuomo issued Executive Order 202.8, tolling the statutes of limitation through April 19, 2020. (Available here: http://www.courts.state.ny.us/whatsnew/pdf/EO-202.8-ocr.pdf). New Jersey’s courts have yet to offer guidance on this issue. Indeed, as of the time of this writing, service processors continue to operate as normal in New Jersey.
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