8. Procedures In Serving Notices Of Condemnation
Personal Service. Personal service of the notice of condemnation (see ENRD Resource Manual at 27) must be made under Rule 71A(d)(3), Fed.R. of Civ.P., upon any defendant whose residence is known who resides within the United States or its territories or insular possessions. The United States Marshal for the district in which the defendants reside should be requested to make personal service upon defendants living outside the territorial limits of the court in which the case is pending. A sufficient number of copies of the notice should be furnished the United States Marshal for service upon defendants, for the return of service pursuant to Rule 4(d), Fed.R. of Civ.P., for the United States Marshal's files and for use by government counsel in charge of the case. In jurisdictions in which notices are served on defendants immediately after the filing of the case, such notices should be accompanied by a statement showing the amount d eposited as estimated just compensation, the procedure to be followed in obtaining disbursement of the funds, and other helpful information that will facilitate the disposition of the case. See form letter, ENRD Resource Manual at 28.
Service by Mail. Rule 71A(d)(3)(i) provides that personal service of the notice of condemnation (but without copies of the complaint) shall be made in accordance with Rules 4(c) and (d). Since Rules 4(c) and (d) have now been amended to permit service on individuals and corporations by mail, that method of service of the notice of condemnation is also permitted by virtue of Rule 71A(d)(3)(i).
The amendment to Rule 4 adds to the Appendix of Forms at the end of the Fed.R. of Civ.P. "Form 18-A" denominated "Notice of Acknowledgement for Service by Mail." Form 18-A, as it stands, is inappropriate for use in condemnation cases. A modification of the form is necessary to substitute "notice of condemnation" wherever the words "summons and complaint" appear and to eliminate a substantive provision that is inconsistent with Rule 71A. A sample modified form of "Notice of Acknowledgment for Service by Mail" for use in condemnation cases is provided in the ENRD Resource Manual at 46.The substantive change made to Form 18-A is the deletion of the following paragraph:If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.
This paragraph is deleted because it is inconsistent with the provision of Rule 71A(e) that at the trial of the issue of just compensation, whether or not he/she has previously appeared or answered , a defendant may present evidence as to the amount of the compensation to be paid for his/her property, and he/she may share in the distribution of the award.
Thus, service of an answer is not mandatory, and a judgment by default cannot be taken against the defendant in the condemnation case for failure to answer. And since the Rule 71A(e) provisions regarding appearance and answer are included in the notice of condemnation served upon the defendant, there is no need to recite them in the "Notice of Acknowledgment for Service by Mail."
We see no problem with modifying Form 18-A to conform to the peculiarities of Rule 71A. The Introductory Statement to Appendix of Forms at the end of the Rules of Civil Procedure states that "The following forms are intended for illustration only." Such forms are "sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate." Rule 84. But, "(i)t is not mandatory that the Official Forms be followed . . .." Wright and Miller, Federal Practice and Procedure: Civil § 3161. Accord: 7-Pt. 2 Moore's Federal Practice § 84.02.
The subject has been covered in detail in this memorandum to aid you in your response should a defendant or the court question the sufficiency of service by mail accomplished in the manner outlined herein.
- Service by Publication. The same form of notice is used for service by publication as for personal service (see ENRD Manual at 27). If constructive service is required:
- Prepare certificate of service by publication (see ENRD Resource Manual at 36).
- Arrange for its publication in the manner provided by Rule 71(A)(d)(3)(ii), Fed.R. of Civ.P.; and
- Only those not personally served need be named and the notice to be published should contain only the shortest legal description sufficient to identify the property.
When publication has been completed:
- Obtain from the publisher the required proof of publication, and
- Prepare the certificate of publication and mailing (see ENRD Resource Manual at 37) as required by Rule 71(A)(d)(3)(ii), Fed.R. of Civ.P.
Service Upon Minors and Incompetents
Minors and incompetents are served in the manner prescribed by the law of the state. It will often be necessary to secure the appointment of and effect service upon guardians ad litem . The appointment of and service upon attorneys ad litem is necessary for those in the Public Health Service on duty with the Armed Forces (see JM 5-15.525).
When personal service has been completed and publication of constructive service has been commenced, a copy of the actual published notice, accompanied by the United States Marshal's returns of all persons served with summons and a list of those defendants whose appearances have been entered, should be forwarded to the Department.