No Signature, No Service—No Exceptions, Even for COVID-19

COVID-19 does not excuse litigants from strictly complying with the requirements for service by certified mail, as one party found out. The state appellate court vacated a default judgment for lack of personal jurisdiction, finding that the defendant had not been served because the postman had not obtained a recipient signature at delivery due to pandemic protocols for social distancing. ABA Litigation Section leaders agree with the result but note that similar cases were decided differently in the same state.

Plaintiff Complied with the Letter of the Law, Letter Carriers Did Not

In CUC Properties, VI, LLC v. Smartlink Ventures, Inc., the landlord plaintiff sued the defendant, its tenant, after the defendant abandoned its office space and stopped paying rent during the pandemic. The plaintiff’s attorney delivered the summons and complaint to the clerk with instructions to serve it by certified mail. The clerk did so, sending the summons and complaint to both the defendant’s registered agent and its principal place of business.

Mail carriers delivered the documents to the recipients but wrote “Covid 19” and “C19” on the signature lines rather than requiring recipient signatures. To help stop the spread of COVID-19, the U.S. Postal Service (USPS) modified its procedures to limit its mail carriers’ proximity to customers. Under the COVID-19 Continuity of Operations Update, carriers were to maintain a safe distance from the recipient, ask the recipient for a first initial and last name, write the information on the return receipt, then have the recipient step away while the carrier places the mail somewhere for the recipient to retrieve it.

The defendant did not file an appearance or answer the complaint. After several months, the plaintiff moved for a default judgment. This prompted the defendant to answer the complaint, but it was too late: The court entered default judgment in favor of the plaintiff that same day.

Rather than moving to set aside the default judgment, the defendant appealed to the Court of Appeals of Ohio, First District, Hamilton County. The defendant argued that the designations on the return receipts—“Covid 19” and “C19”—did not demonstrate that a person received the summons and complaint. Without proper service, the trial court lacked personal jurisdiction over the defendant, which in turn required the default judgment to be vacated.

It Takes Two to Certify Mail

The appellate court vacated the default judgment on the grounds that the postman’s notation of “Covid 19” or “C19” did not qualify as a valid signature under Ohio Civil Rule 4.1(A)(1)(a), which authorizes service of process by certified mail. The rule requires that the clerk shall send the summons and complaint to the USPS “with instructions to the delivering postal employee to show to whom [summons and complaint is] delivered, date of delivery, and address where delivered” and that such service be “[e]videnced by return receipt signed by any person.” The appellate court reasoned that the signature requirement’s purpose is to confirm that someone received the summons and complaint, which the notations did not do. By marking the receipt with “Covid 19” or “C19”, the appellate court explained that the mail carriers had “assumed the role of both the deliverer and the recipient.”

In so holding, the appellate court rejected the plaintiff’s argument that the USPS’s modified pandemic procedures allowed carriers to sign on behalf of the recipient, noting that the carriers did not comply with the protocol of noting the first initial and last name. It also declined to address the plaintiff’s reliance on the Ohio Supreme Court’s administrative action, which had allowed local courts to waive requirements for in-person service. Though other county courts had accordingly implemented rules to allow for alternatives to the certified mail signature requirements, Hamilton County had not.

Concluding that the defendant had not been served, the appellate court vacated the default judgment for lack of personal jurisdiction over the defendant.

Best to Use a Process Server?

Section leaders view the ruling as a correct application of Ohio law but hesitate to call it a fair decision because the same civil rule was applied differently across Ohio trial courts. “The court seemed to be saying that if Hamilton County entered an order authorizing a method of service by certified mail endorsed ‘C19’ or ‘COVID-19’, it would have found that the plaintiff made good service, whether or not the defendant had actual notice,” observes Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Litigation Section’s Pretrial Practice & Discovery Committee.

Section leaders are less concerned about the long-term implications of this decision. “This is a one-time, 18-month period of exceptions,” asserts Donald W. Davis, Akron, OH, cochair of the Section’s Trial Practice Committee. However, he notes that it may be wise for practitioners to consider other methods of service. “In Ohio, you have to request the appointment of a private process server. Otherwise, service is made by the clerk’s office. If the matter is significant enough, I will request the appointment of a process server so I can control service,” he states.