Service On A Corporation In An Adversary Proceeding Need Not Be By Name

March 1, 2007

In the case of In re Outboard Marine Corp. — B.R. —-, 2007 WL 79265 (Bkrtcy. N.D.Ill.,2007) the court held that F.R.B.P. 7004(b)(3), the bankruptcy rule governing service upon a corporation, does not require that a plaintiff serve by name the corporate officer or managing or general agent. Rather, the plain language of the rule, supported by the Advisory Committee Notes, mandates only that the mailing be sent to the attention of the officer or agent by reference to his position or title. In addition, requiring a plaintiff to direct the service of process to the corporate officer or agent by name would entail an extra step of searching state records in order to ascertain that name and, if the corporate records later turned out to be inaccurate, would unfairly render otherwise adequate and proper service invalid. A split of authority was noted in the cases of In re Golden Books Family Entm’t, Inc., 269 B.R. 300, 305 (Bankr.D.Del.2001): Addison v. Gibson Equip. Co. (In re Pittman Mech. Contractors, Inc.), 180 B.R. 453, 457 (Bankr.E.D.Va.1995); In re Schoon, 153 B.R. 48, 49 (Bankr.N.D.Cal.1993); In re Faulknor, No. R04-43921-PWB, 2005 WL 102970, at *2 (Bankr.N.D.Ga. Jan.18, 2005). These cases are not binding on the courts in New York; but neither is this Illinois case.

So what does a vigilant bankruptcy lawyer do when effecting service on a corporation? Take the time to locate the name of a corporate officer and do your best to effect proper service. Sites such as the New York State Department of State Corporation and Business Entity Search can help track down your parties, as can the SEC EDGAR database and the FDIC Bank Find database.

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