From: Greg Broiles <gbroiles@netbox.com>
Date: Tue, 20 Aug 1996 22:07:34 +0800
To: cypherpunks@toad.com
Subject: Re: CS First Boston lawsuit
Message-ID: <2.2.32.19960820101053.0069d994@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain


At 12:03 PM 8/19/96 -0400, Black Unicorn wrote:
>On Sun, 18 Aug 1996, Timothy C. May wrote:
>
>> At 3:29 AM 8/19/96, Alan Horowitz wrote:
>> >I suspect they are trying to get a judgement against "John Doe", in the
>> >hopes of tracking him down later.
>> >
>> >Actually, if I had a sizeable judgement against such a John Doe, I could
>> >probably find a private detective who would find the dude for a
>> >contingent fee. Wow, a whole new class of factoring (commerce definition)
>> >opens up. Get me a lawyer....

Sure, there are collection people who do this regularly; it's also possible
to sell judgements for a fraction of their face value. 

>> Lawyers out there can and should correct me if I'm wrong, but I don't
>> believe either the criminal or civil justice system has the concept of a
>> "John Doe" trial! The ability to have the advice of an attorney, to
>> confront one's accusers, cross-examine witnesses, and mount a defense, and
>> all that constitutional stuff. Rather hard to do if the trial is in the
>> past tense.
>> 
>> Can you cite an example of such a "John Doe" trial in the U.S.?
>
>Not exactly, but judgements against John Doe's or even "$956,334.34" are
>common.  Typically they are default judgements where a property seizure is
>involved.
>
>"The United States of America v. $534,444.00" and "The United States of
>AMerica v. One Red Porsche" is a common theme.

It is possible to name unknown defendants in a suit - the tradition is to
name them as, literally, "John Doe" or "John Does 1-6, unknown Washington
County Sheriff's Deputies". The idea is that at some point prior to trial
you'll learn the names of the defendants and then ask the court for
permission to amend your complaint to add the newly found names. 

(e.g., Oregon Rule of Civil Procedure 20(H): "Fictitious Parties. When a
party is ignorant of the name of an opposing party and so alleges in a
pleading, the opposing party may be designated by any name, and when such
party's true name is discovered, the process and all pleadings and
proceedings in the action may be amended by substituting the true name.")

But naming someone in a suit is not sufficient to give them notice that
they've been sued, so that they know to file an answer and otherwise defend
themselves. At least in Oregon (state & Fed courts, since Fed courts borrow
the state's rules for service of process, Fed Rul Civ Pro 4(e)(1)), service
by publication (as mentioned in another message) is only allowed where the
plaintiff files an affidavit that they have tried every other appropriate
means of service and they have been unsuccessful, or that they have reason
to know it will be unsuccessful. ORCP 7(D)(7). Service by publication is
relatively rare. 

So Tim's correct (at least as far as I know, and I sure don't know
everything) when he says that John Doe *trials* are essentially unknown -
because if defendant(s) don't appear for trial but have been served, the
plaintiff can get a default judgement against them - which makes a trial
unnecessary, at least for those defendants. 

It's also possible (sometimes) for a defendant to overturn a default
judgement and ask for a real trial, if they can show that there was a good
reason why they didn't respond initially. Bad (or unattempted) service of
process is usually a good reason. 

The John Doe lawsuits are more likely to falter at the service-of-process
stage; before you get to ask for a default judgment, you've got to prove
that the defendant was served. And if you don't even know their name, it's
tough to serve them with the summons & complaint. No service, no judgement. 

The connection between the service-of-process problem and the in rem cases
Black Unicorn mentioned (e.g., "United States v. $405,089.23") is that the
owner of the property is supposedly put on notice by the seizure or
attachment of the property itself. A court can exercise jurisdiction over
*stuff* (e.g., property) and enter a judgement against the stuff even if it
hasn't gained jurisdiction (via service of process) over the person who owns
the stuff. In the most common seizures, the stuff is seized from one or more
people; those people are also given notice of the seizure and their right to
contest it.

(which is not to say that I'm a fan of forfeiture - I'm not - but the cases
I've seen/worked on haven't suggested that lack of notice is a problem.
Claimants/owners/possessors don't always understand the notice they're given
at seizure, and they don't always bother to act within the awfully short
deadlines (10-15 days, in some cases) required to file a claim. But people
do get (arguably inadequate) notice.) 

To some extent, in rem jurisdiction is practically necessary - otherwise
it'd be possible to have property in a wrong place, or creating
unwanted/harmful effects, which could not be legally moved or changed
without service of process on the owner - who may be dead or travelling or
uninterested or just hard to find. If cryptoanarchy becomes more prevalent,
and it becomes more difficult to trace ownership and control of interesting
stuff (e.g., physical or intellectual property, and/or "bots" of one flavor
or another), look for more in rem actions, not fewer.   

(I can't think of an example of a John Doe criminal proceeding, except that
I believe grand juries can hear testimony and investigate crimes where a
target has not yet been identified. But that's a very early stage of
criminal proceedings where the defendant doesn't have many rights even if
they are identified; so the lack of notice isn't much of an injury.) 

--
Greg Broiles                |"Post-rotational nystagmus was the subject of
gbroiles@netbox.com         |an in-court demonstration by the People
http://www.io.com/~gbroiles |wherein Sgt Page was spun around by Sgt
                            |Studdard." People v. Quinn 580 NYS2d 818,825.