St. Mary's Law Journal


Even as technology evolves, the Federal Rules of Civil Procedure, specifically Federal Rule 4, remains stagnate without a mechanism directly providing for electronic service of process in federal courts. Rule 4(e)(1) allows service through the use of state law—consequently permitting any state-approved electronic service methods—so long as the federal court where proceedings will occur, or the place where service is made, is located within the state supplying the law. Accordingly, this Comment explains that Rule 4 indirectly permits electronic service of process in some states, but not others, despite all 50 states utilizing the same federal court system. With states such as Utah, Alaska, and Texas enacting varying legislation authorizing electronic service of process, Rule 4(e)(1) will continue to increase the instances of inconsistent methods of service across the federal system as more states permit electronic service of process.

Thus, to avoid the arbitrary results of a system lacking uniformity, this Comment proposes amending Rule 4 to recognize electronic service of process as a viable method of initiating civil lawsuits. Generally, scholars seem to agree there is a growing need to modernize our fundamental civil procedure doctrines and rules. At the same time, many fail to recognize the urgency of the situation: a pressing need for reform, further exposed by COVID-19, which saw its initial waves halt a large part of our federal court system.

Nevertheless, continuing to ignore the incongruities Rule 4(e)(1) is capable of producing maintains a direction that stands in contrast to the purpose of the Federal Rules of Civil Procedure contained in Federal Rule 1: to assist parties with reaching a fair outcome without excess time involved or costs incurred. Our federal court system cannot be allowed to reach different outcomes in similarly situated cases (be it dismissing actions for improper service or litigating actions to finality) based upon the state in which an individual brings suit. Moreover, modernizing Rule 4 to include electronic methods of service decreases the risk of ambiguity in our legal system, reduces the likelihood of forum shopping, and lowers litigation costs. Therefore, Rule 4 should be amended as a crucial step towards modernizing civil procedure.

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St. Mary's University School of Law


Brent A. Bauer