From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 21 Aug 1996 04:41:39 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: CS First Boston lawsuit
In-Reply-To: <2.2.32.19960820101053.0069d994@mail.io.com>
Message-ID: <Pine.SUN.3.94.960820121113.10677A-100000@polaris>
MIME-Version: 1.0
Content-Type: text/plain


On Tue, 20 Aug 1996, Greg Broiles wrote:

> 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. 

I should have been clearer.

Indeed an in rem jurisdiction case relies on the property seizure as
notice.  A default judgement against for example, $233,445.00 and several
unnamed individuals" would clearly have problems along the service of
process lines if ever contested.

Practically speaking, however, the above are judgements against "John
Doe"'s.  Clearly this is not a "trial" in the strict sense of the word.

> 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. 

Agreed.

> 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.
 
Nicely put.

> --
> 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.

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li