When and how is service by publication valid? Sometimes a prospective defendant cannot be served because s/he is out of the country, or just plain is in hiding. In that case, a judge will sometimes allow service by publication. That is, after publication of the charges, the defendant will have been deemed to have been served. Under what specific circumstances is this allowed? If the defendant is represented by a lawyer who has answered for the defendant in other aspects of the case, can service be effected just by notifying the lawyer? After all, the defendant engaged the lawyer who (presumably) knows how to reach him or her. Or is this covered by attorney client privilege?
Preface: Why Is Service Necessary? A court order is not binding with respect to a person unless the court in question had jurisdiction over that person, or their predecessor-in-interest (or sometimes someone with a relationship with that person known as "privity"). To obtain jurisdiction over a person, the court must be a forum that is capable of exerting jurisdiction over that person with respect to this particular case, and there must have been service of process upon that person by an acceptable means. In order to obtain a valid court order against a person that makes that person personally responsible for money judgment, or orders them to do something or to refrain from doing something that is not simply with respect to a particular piece of property (i.e. in an in personam action), there must be either personal service (i.e. hand delivery of legal papers to the person), or substituted service (e.g. hand delivery to an adult family member in the same household, hand delivery to an employer, service by mail or email or text message when authorized by a court, etc.). Substituted service is generally not valid for service of a subpoena, only personal service will do in that case. A person can waive service of process by delivering a signed waiver to the person seeking process, or by filing certain kinds of documents with the court in which the lawsuit is pending. Service by publication is only allowed in actions that are in rem or quasi-in-rem, as opposed to in personam. Only Actions In Rem or Quasi-In-Rem Service by publication is only effective with respect to actions in rem, which is to say regarding rights with respect identified property and the relief granted with respect to that defendant is limited to relief in rem, i.e. with regard to rights in that property, or quasi-in-rem (as explained below). For example, no money judgment against the defendant can be entered on the basis of service by publication alone, although service by publication can bar a claim for money damages by the defendant to be satisfied out of the property at issue in the action, such as the assets of a probate or bankruptcy estate. Common in rem actions including evictions (limited to termination of right to possession and not a money judgment for rent owed), replevin (a suit to regain physical possession of tangible personal property), quiet title, foreclosure, civil forfeiture, probate proceedings, bankruptcy cases, and claims processes for failed banking institutions or corporations outside the bankruptcy process (e.g. FDIC resolutions of claims of failed banks). For this purpose, a suit regarding the the existence of or termination of a marriage or family relationship is in rem, although no in personam obligations or liabilities such as a child support judgment or a protection order can be imposed in such an action. For example, this is done in adoption proceedings, in certain guardianship and conservatorship proceedings, in divorces where the other spouse cannot be found, and in determinations of death due to prolonged absence or other circumstances where the death cannot be confirmed. A lawsuit supported by "quasi-in-rem" jurisdiction, if a lawsuit is one that would normally require personal service of process or substitute service of process for the court to obtain jurisdiction, is permitted when any relief is limited to recover from specific property over which the court can claim jurisdiction. As Wikipedia explains at the link: On June 24, 1977, in the case of Shaffer v. Heitner, 433 U.S. 186, the Supreme Court of the United States decided that the requirement that the circumstances giving rise to jurisdiction comply with the notion of "fair play and substantial justice" should apply to the quasi in rem jurisdiction questions. The Supreme Court significantly diminished the utility of the quasi in rem jurisdiction because if the case meets the minimum contacts, fair play and substantial justice tests, the action can be brought under the in personam jurisdiction. Quasi in rem jurisdiction, however, can still be an effective option to bring the lawsuit to a particular court because quasi in rem jurisdiction allows litigants to overcome limitations of the long-arm statute of a particular state. Thus under Schaffer v. Heitner, quasi-in-rem jurisdiction is basically only allowed when the court could have had personal jurisdiction over the case if the defendant had been personally served with process, but it is not feasible to serve the defendant with process, and publication (often together with service by mail to the defendant's last known address and the addresses of people like a former attorney or family member with a relationship to the defendant) is reasonably calculated to give actual notice to the defendant. For example, suppose that someone who owns real estate in Maine gets in a car accident in Maine, and the defendant who lives in China cannot be served with process despite duly diligent attempts to do so. If a process server in China had served the defendant with process, he would have been subject to the jurisdiction of a court in Maine where the lawsuit was filed because the accident that gives rise to the liability took place in Maine. Therefore, a court might assert quasi-in-rem jurisdiction over the defendant with relief limited to the real property in Maine (since a Maine court has jurisdiction over real estate in Maine). The court would then allow the injured victim plaintiff to serve the defendant with process via publication (in the county where the lawsuit is brought) and via mail to the defendant and known associates of the defendant such as a spouse and an employer and a former attorney of the defendant. If the defendant did not file an answer in the case by the deadline, a default judgment would enter against the defendant and an evidentiary damages hearing would be held ex parte (i.e. without anyone representing the defendant there). Then, based upon that hearing a judgment would be entered against the defendant by the court, with collection of the judgment limited to that parcel of real estate in Maine. The real estate could then be seized by the plaintiff in an execution sale conducted by the sheriff, to satisfy the judgment in favor of the plaintiff and against the defendant for the damages caused by the car accident in Maine. There are two types of quasi in rem jurisdiction: 1) quasi in rem type 1 (QIM1); and 2) quasi in rem type 2 (QIM2). In QIM1, a plaintiff sues to secure a pre-existing claim in the subject property. For example, actions that seek quiet title against another's claim to the property. In QIM2, the plaintiff has no pre-existing claim in the subject property. That is, the property rights of the owner are not in dispute, but rather the plaintiff seeks the property so that they may satisfy a separate claim. For example, a person who walks across another's real property and falls into an open pit might have no pre-existing claim regarding the property, but may initiate a QIM2 action to redress his injury. The line between in rem and quasi-in-rem type one jurisdiction (e.g. in the context of a foreclosure or an eviction for unpaid rent or enforcement of a personal property security interest where the property is collateral) is obscure and often ignored in practice. Usually, "quasi-in-rem" jurisdiction refers to quasi-in-rem type 2 jurisdiction. Only Following Duly Diligent Efforts To Secure Personal Service Service by publication requires truthful statement from the person seeking it that a duly diligent effort has been made to locate and/or serve the defendant against whom it is to be effective in person. Service by publication is not effective against a known defendant who could have been served personally, unless the defendant had actual knowledge of the service by publication within a reasonable time before the service by publication is held against him or her. See, e.g. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 491 (1988), In re Sheridan, 117 P.3d 39, 41 (Colo. App. 2004), and Estate of Russo v. Sunrise Healthcare Corp., 994 P.2d 491, 494 (Colo. App. 1999). In an action where there is a known defendant in an in rem action, service by U.S. mail to a last known address of the known defendant, rather than personal hand delivery of the process to the defendant, is often sufficient. Service Via An Attorney Is Only Sometimes Available If the defendant is represented by a lawyer who has answered for the defendant in other aspects of the case, can service be effected just by notifying the lawyer? This is allowed if the lawyer represents that person in that lawsuit. With only a handful of exceptions (where ex parte motions are allowed) everything filed in court in a case must be served upon every lawyer who has entered an appearance in the case (usually via E-filing these days, but historically, usually by mail). An attorney for someone is not an agent for service of process upon a defendant unless the process served is within the attorney's scope of representation, normally, as disclosed by a general entry of appearance by the attorney in that particular lawsuit (what constitutes a general entry of appearance is something of a technical issue). But, if service of process cannot be hand with due diligence upon a party represented by a lawyer in a related case, a court will often order "substituted service" upon the lawyer (and mail to the last known address of the client) rather than, or in addition to, service by publication. Service upon an attorney does not suffice to establish actual knowledge of service by publication for purposes of issue #2 above. Or is this covered by attorney client privilege? Often the attorney cannot be compelled to disclosure to location of the party represented by the attorney due to attorney-client privilege. But, attorney-client privilege is not directly relevant to whether service upon an attorney constitutes effective service upon the client. Effective Date Usually, service by publication is in a newspaper that has been determined by law to be sufficient to provide legal notice defined by statute, and it must be published every week for three to five weeks depending on the jurisdiction and circumstances, with the date of service deemed to be the date of the last publication. Default judgment can be obtained based upon service by publication only on the X days after service that would apply if there was personal service of process upon that person. Effect Of In Rem Judgment A judgment against a defendant in an in rem action, does not preclude the plaintiff from bringing a separate action against the same defendant, in personam, seeking money damages. But, the findings of fact and conclusions of law in the in rem action are not binding against the defendant in the subsequent in personam action and instead have effect only with respect to rights in the property at issue in the in rem action. For example, if you are evicted from real estate in an in rem action where there is service by publication, because you didn't pay the rent, you cannot be obligated to pay a money judgment for the rent unless you are served with personal service or substituted service in that lawsuit or a later lawsuit. And, if it is a later lawsuit, the court's finding in the eviction action that you didn't pay the rent as agreed is not binding against you except for the limited purpose that you are no longer allowed to be in possession of the real estate from which you were evicted and that you can't challenge the validity of the eviction in a counterclaim or collateral lawsuit. In other words, even if you later prove that you had actually paid the rent that was the basis of the eviction action in a later lawsuit, you are still evicted, because you lost the right to complain about being evicted when you didn't respond to the service by publication.
It's no fantastic legal source, and rules may vary in different countries, but from the Wikipedia article on Attorney client privilege: Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness—a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such action. In other words, if the client's lie is related to one of the lawyer's interests (for example, if the client sues the attorney for malpractice based on the advice he was given), the lawyer can break privilege on his own behalf, thus testifying that his client lied. As to the specific case you brought up, I would say that privilege wouldn't protect the client from the lawyer discussing things never brought up. In other words, we could force the attorney to testify, since one of two things is true: The attorney really did give him that advice, in which case the client has already voluntarily given up his right to confidentiality by describing what was said between them, or The lawyer never gave him that advice, and privilege wouldn't protect a conversation between the two that never transpired.
This appears to be covered by the Norway Criminal Procedures Code, of which an English version can be found here. Chapter 10 deals with witnesses. Here are some relevant sections: § 108. Unless otherwise provided by statute, every person summoned to attend as a witness is bound to do so and to give evidence before the court. There follow a number of exceptions (spousal privilege, attorney-client privilege, state secrets, etc). None of them seem to apply to your example. § 115. The court may decide that a witness who fails to attend or who leaves the place of sitting without a valid reason shall be brought before the same or a subsequent sitting of the court. In special cases the court may decide that a witness shall be detained in custody until he can be examined. § 128. Before the examination the president of the court shall admonish the witnesses to tell the whole truth without concealing anything. He shall inform the witnesses of the liability consequent on giving false evidence or making a false affirmation. § 137. If a witness refuses to give evidence after being ordered to do so by a legally enforceable court order, the court may by a new order decide that the witness shall be kept in custody until he fulfils his obligation. Nevertheless a witness may not be kept in custody for more than three months altogether in the same case or in another case relating to the same matter. So effectively, if the witness fails to show up voluntarily, he can be brought in forcibly. He can be ordered to testify, and if he refuses, he can be held in custody (probably a jail) for up to three months. However, the authority to compel testimony is limited to courts; the police cannot compel statements from witnesses. § 230. The police may take statements from suspected persons, witnesses and experts but may not order any person to make a statement. So in your example, it appears that the witnesses would be free to refuse to speak to the police. However, if the case came to trial, they could be ordered to testify, and could be held in custody if they refused.
If they have not filed before the publication, there will be no ability to later file in most of the world. In the U.S. there is a sort-of one year grace period to file after publication. You will not have a way to definitively know if there is an application pending until it publishes or issues. Normally an application publishes and is open for the public to see 18 months after the first priority filing. That applies to the rest of the world, but in the U.S. it is possible to opt-out of publication. In that case no one can see he application until the day it issues as a granted patent, if ever. If you are making, selling, offering for sale, using or importing an infringing process or product when a patent issues you could be sued for patent infringement. I do not see how this can be seen a &quot;retroactive&quot;. As a practical matter, if you fold immediately upon the patent issuing it is unlikely you will end up with any liability. You can set a search in more than one search facility to trigger if a patent is issued to one of the known inventors or use with other criteria but this is not foolproof. Edited Of course your product could infringe any number of patents unrelated and unbeknownst to the party who published the software. That party not patenting has nothing to do with what others may have filed before they published.
There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels). If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose. Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer.
A court can neither sue nor be sued as it is not a legal person. The state (read government) can be (subject to sovereign immunity) in its administrative arm (i.e. not the judicial or legislative branches). For your particular examples: A suit filed by a fired employee (e.g. a court stenographer), the court has no employees. Court stenographers et al are employed by the administrative branch - the person who gets sued is the Secretary of State for the Justice Department (or whatever they are called). A suit filed by a utility company for late payments for electricity, Utility companies are not the government even if 100% government owned (most are privately owned anyway) - companies are their own legal person. A suit against a postal service that failed to deliver and lost court documents, etc. I do not know what the legal status of the US Postal Service is - it is either part of a government department ora government owned corporation - see above. The court is impartial because it is constitutionally required to be - it doesn't care who the plaintiff or defendant are.
A court can have jurisdiction over property in rem without personal service upon all persons who may claim an interest in the property. Typically, this is done by providing some form of service (such as notice by mail) upon people who are known to have an interest in the property, and an alternative to service directed at an individual (such as notice by posting at the property, by publication of a notice in a public place, or by publication of a notice in a newspaper where the property is located). Civil forfeiture often involves this kind of indirect notice to unknown parties by publication. what would be the remedy where the Court ordered the property of the other persons to be sold, again without issuing service to said persons The ruling of the criminal court is not binding on people who were not served with process in the original action (either personally, if known, or by publication or some other similar means, if not known to the court) in another legal proceeding. But if a claim becomes moot, there may be not remedy available of a violation of one's rights. They could conceivably bring an action to quiet title, or the equivalent, or an action in replevin, which would not be bound by the Court's findings since the third-parties weren't a party to it, and an injunction on the sale could be sought in that case, if it wasn't too late. But, if the third-parties had actual notice of the pending criminal action, the better option would probably be to file a motion in the criminal action to intervene with respect to disposition of the property. Takings of property in the context of the criminal justice system are not &quot;takings&quot; in the 5th Amendment constitutional sense, for which an inverse condemnation action are available, although there is still a due process requirement, which isn't met without some effort to give potential known or unknown third-party claimants notice of the sale. If there was a court ordered sale, any claim would probably be against the proceeds of the sale, and not against a bona fide purchaser for value at a court ordered sale regularly conducted. Of course, this presumes that the property is not contraband (you can't make a legal claim to cocaine even if you own it). If the defendants did not give you notice of your ownership interest, and this resulted in you not being able to intervene in the criminal action, you could also sue the defendant for breaching duties owed to you as a fellow property owner of the property disposed of in the criminal action. Ultimately, this is not an enviable position to be in, and the likelihood of a court effectively destroying your property interest in the property subject to the criminal proceeding in a manner that there is no economically efficient remedy to address is significant. Some of the relevant case law is discussed at another answer I wrote on a related topic. See also this answer on civil forfeiture. One of the leading U.S. Constitutional law cases on the topic is Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy.”).
Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character.