July 14, 2020

Volume X, Number 196

July 13, 2020

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Personal Jurisdiction in a Time of Social Distancing

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 herehttps://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 herehttp://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.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 86


About this Author

Anthony Argiropoulos, antitrust attorney, Epstein Becker
Member of the Firm

ANTHONY ARGIROPOULOS is a Member of the Firm in the Litigation and Health Care and Life Sciences practices and Co-Chair of the firm's National Litigation Steering Committee. He represents health care clients, publicly held companies, and other large businesses in high-stakes litigation and dispute avoidance and resolution. He has represented clients in federal and state court matters throughout the United States and his deep experience includes numerous jury trials, bench trials, injunction proceedings, arbitrations, and mediations.

Maximilian D. Cadmus Litigation & Business Disputes Attorney Epstein Becker & Green Princeton, NJ

MAXIMILIAN D. CADMUS is an Associate in the Litigation & Business Disputes practice, in the Princeton office of Epstein Becker Green.

Mr. Cadmus:

  • Represents clients in a variety of commercial litigation and related contexts, including insurance coverage disputes, administrative appeals, and business, products liability, and professional liability litigation
  • Provides representation to clients before state and federal courts, arbitration panels, and administrative agencies

Before joining Epstein Becker Green, Mr. Cadmus was a litigation attorney at a New Jersey-based law firm. Previously, he was a Judicial Intern to the Honorable Dennis F. Carey, III, of the New Jersey Superior Court, Essex Vicinage, and then to the Honorable Jose L. Linares of the U.S. District Court for the District of New Jersey. Later, he was a Law Clerk to the Honorable Jerome M. St. John of the New Jersey Superior Court, Appellate Division.

While attending law school, Mr. Cadmus was an Articles Editor of the Rutgers Law Review.