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Kolker v. Hurwitz - 269 F.R.D. 119 (D.P.R. 2010)

Rule:

Statutory limitations on individual freedoms guaranteed by the U.S. Constitution are examined for substantive authority and content as well as for definiteness or certainty of expression. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, the more important aspect of the vagueness doctrine is not actual notice, but the requirement that a legislature establish minimal guidelines to govern law enforcement. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.

Facts:

The landowner sued his neighbous regarding a property he and his deceased wife bought. He left process with a security guard at the neighbors' residence. The defendant neighbors sought the dismissal of the action for improper service.

Issue:

Was the process directed to the defendant neighbors properly served when left with the security guard of the neighborhood?

Answer:

No.

Conclusion:

The neighbors were not served because, (1) under P.R. Laws Ann. tit. 32, App. III R. 4.5 and 4.7, the landowner did not show an authorized edict was published or that he sent them process by certified mail with acknowledgment of receipt, (2) he did not show he personally served them, mailed process by registered or certified mail, return receipt requested, under Tex. R. Civ. P. 106(a), or had leave to serve under Texas R. Civ. P. 106(b), (3) they were not personally served under Fed. R. Civ. P. 4(e)(2)(A), (4) nothing showed the guard had to tell them of the process, under Fed. R. Civ. P. 4(e)(2)(B), (5) nothing showed an agent was served, and (6) nothing showed they appointed their attorney to receive service under Fed. R. Civ. P. 4(e)(2)(C). The homeowner could, under Fed. R. Civ. P. 15(a), file a second amended complaint because the proceedings were at an early stage and defendants would not be prejudiced, but the neighbors had to be removed from the complaint. The other defendants' motion to dismiss and for attorneys' fees was moot because the amended complaint cured the deficiencies it stated.

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