Civil Procedure

Fact Pattern

A buyer, who is citizen of State A, has arranged to purchase a tract of land in State B on which to build a shopping center. The sale is contingent on an inspection, which includes an analysis of any environmental contamination on the property. The seller, a citizen of State B, hires a laboratory, also a citizen of State B, to test the soil. The laboratory issues a report to the seller certifying that the property is free of contamination. The seller provides this report to the buyer, and the sale is completed soon afterwards.

The buyer begins construction on the property. While excavating the property, workers discover several buried storage tanks that once held toxic waste. The buyer then conducts his own tests, which reveal that the property is, in fact, contaminated. Under the law of State B, the buyer must clean up the soil before further developing the property.

The buyer files a breach-of-contract suit against the seller in the United States District Court for the District of State B. The amount in controversy is $5,000,000. The laboratory is not named in the complaint, but the seller believes that the laboratory was at fault and, therefore, should indemnify the seller against the buyer’s claim.

The law of State B provides that any complaint alleging a claim based on environmental contamination must include an affidavit from a licensed environmental engineer. The affidavit must specify the types and concentrations of contaminants at issue, and it must state the engineer’s best estimate of when the contamination occurred. This law is designed to avoid frivolous litigation, by imposing a heightened pleading requirement for claims alleging environmental contamination. The buyer did not include an affidavit with the complaint.

The law of State B allows service of process only by the methods specified in Federal Rule of Civil Procedure 4.

The day after filing the complaint, the buyer’s attorney mails a request for waiver of service to the seller. The mailing includes all documents necessary to make up a valid request for waiver, and it gives the seller 45 days to respond. The seller does not respond to the waiver request. Eighty-five days after filing the complaint, the buyer’s attorney places a copy of the summons and complaint on the porch of the seller’s house. The seller finds the documents later that day.  

One hundred days after the buyer filed the complaint, the seller files two separate motions to dismiss the case. The first seeks to dismiss the case for insufficient service of process. The second seeks to dismiss the case based on the buyer’s failure to include the required affidavit with the complaint. Assume that both motions are timely, and that the court has subject-matter jurisdiction over the buyer’s claims, as well as personal jurisdiction.

Questions

1. How should the court rule on the seller’s motion to dismiss for insufficient service of process? Explain.
2. How should the court rule on the seller’s motion to dismiss for failure to include the affidavit? Explain.

3. Assume that the case continues. Can the seller join the laboratory in the suit? Explain.