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Civil Resource Manual

188. Bankruptcy Jurisdiction -- Personal Jurisdiction

1. Because of nationwide service of process authorized by Fed. R. Bankr. P. 7004(d), the minimum contacts doctrine does not apply in bankruptcy proceedings at least with respect to defendant residents of the United States. B.W. Dev. Co. v. John B. Pike & Son, Inc., 49 B.R. 129, 131-32 (Bankr. W.D. Ky. 1985); accord Pongetti v. Laws (In re Self), 51 B.R. 683, 685 (Bankr. N.D. Miss. 1985). 2. With respect to foreigners, Fed. R. Civ. P. 4(e) applies (it is incorporated by reference in Fed. R. Bankr. P. 7004(a)), and "service of process . . . requires an analysis of the defendant's minimum contacts with the forum state pursuant to the state's long-arm statute and whether the statute is in accordance with constitutional due process requirements." R.M.R. Corp. v. Clare Bros., Ltd. (In re R.M.R. Corp.), 133 B.R. 759, 764 (Bankr. D. Md. 1991). However, a foreigner filing a proof of claim submits to the personal jurisdiction of the bankruptcy court because a proof of claim is analogous to a complaint whereby a plaintiff submits to the court's jurisdiction for all counterclaims. Kline v. Ed. Zueblin (In re Am. Exp. Group Int'l Servs.), 167 B.R. 311 (Bankr. D.D.C. 1994). 3. Service of process upon the United States is perfected by mailing a copy of the summons and complaint to the United States Attorney for the district in which the action is brought and also the Attorney General of the United States. Fed. R. Bankr. P. 7004(b)(4). Service upon an officer of the United States requires mailing a copy of the summons and complaint to the United States as prescribed in Rule 7004(b)(4) and also to the officer. Fed. R. Bankr. P. 7004(b)(5). These requirements are not discretionary but a requirement for jurisdiction over the United States and an officer or agency of the United States. See George v. United States Dep't of Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986); Smith v. McNamara, 395 F.2d 896, 898 (10th Cir. 1968). Bankruptcy courts must, therefore, dismiss adversary proceedings for insufficiency of process and service of process, and for lack of personal jurisdiction, when a debtor fails to meet the service requirements. See United States v. Levoy (In re Levoy), 182 B.R. 827 (B.A.P. 9th Cir. 1995) (objections to claim require service on the Attorney General, the local US Attorney, and the agency in accordance with Fed. R. Bankr. P. 7004; however, where the IRS files a proof of claim, it submits itself to the court's jurisdiction for objections to the claim); United States v. Laughlin (In re Laughlin), 210 B.R. 659 (B.A.P. 1st Cir. 1997) (ch. 7 trustee failed to serve the U.S. -- the real party in interest in IRS cases -- with motion to abate tax penalties); Whelan v. United States (In re Whelan), 213 B.R. 310 (Bankr. W.D. La. 1997) (service of motion in contested matter against United States on Attorney General is absolute requirement; debtor's failure to do so deprives court of jurisdiction); United States v. Hernandez (In re Hernandez), 173 B.R. 430 (N.D. Ala. 1994) (service of a motion commencing a contested matter on the IRS but not on the local US Attorney or the Attorney General does not satisfy service requirements and mandates reversal of bankruptcy ruling on the contested matter); see generally Messenger v. United States, 231 F.2d 328, 329 (2d Cir. 1956); Fed. R. Civ. P. 12(b)(2),(4),(5); Fed. R. Bankr. P. 7012(b).