72 Colum. L. Rev. 847 (1972)
Service of Process in New York City: A Proposed End to Unregulated Criminality

handle is hein.journals/clr72 and id is 877 raw text is: SERVICE OF PROCESS IN NEW. YORK CITY:
In June of 1971, the United States Court of Appeals for the Second
Circuit, in  United States v. Wiseman,1 affirmed the convictions of two
process servers for violations of the 1866 Civil Rights Act2 and the general
aiding and abetting section of title 18.3
The basis for these convictions was the defendants' systematic practice
of signing affidavits affirming that they had delivered summonses to named
defendants when, in fact, they had never made, nor even attempted to make,
such service. The result was a large number of default judgments entered
against parties who had no way of knowing that proceedings had been instituted
against them.
These cases are significant in two respects. They represent a rare applica-
tion of the Civil Rights Act to deprivations of property.4 In addition, they
provide an unusual insight into the operations of the process service business
in New York City, revealing that for years it has been conducted with sub-
stantial indifference to defendants' right to notice, which is guaranteed by
the fourteenth amendment as an essential element of due process.
This article is concerned with the dramatic breakdown of a system that
exists, in theory, to protect defendants, but serves, in practice, to victimize
them. The initial focus is on the nature and scope of the problem as revealed
* Visiting Associate Professor of Law, University of Wisconsin School of Law.
The author headed an investigation into service of process in the Southern District of
New York conducted by the United States Attorney's Office for that district from the
commencement of the investigation in early 1968 until his resignation as Assistant United
States Attorney in February, 1970. The views reflected in this Article are not necessarily
those of the United States Attorney's Office.
1. 445 F.2d 792 (2d Cir.), cert. denied, 404 U.S. 967 (1971).
2. 18 U.S.C. § 242 (1970). In pertinent part the statute provides:
Whoever, under color of any law, statute, ordinance, regulation, or custom will-
fully subjects any inhabitant of any State . . . to the deprivation of any rights,
privileges, or immunities secured or protected by the Constitution or the laws of
the United States ... shall be fined not more than $1000 or imprisoned not more
than one year, or both ....
The second Circuit found process service to be a public function and therefore found
Wiseman to have acted under color of law within the meaning of the Act. United States
v. Wiseman, 445 F2d at 796.
3. 18 U.S.C. § 2(b) (1970) provides:
Whoever willfully causes an act to be done which if directly performed by him
or another would be an offense against the United States, is punishable as a
The Second Circuit found that the entry of judgment by the Clerk of the Court constituted
the necessary state action and therefore action under color of law for the purposes of 18
U.S.C. § 242. See note 2 supra. Thus, the process servers were found to have violated 18
U.S.C. § 2(b) (1970). United States v. Wiseman, 445 F.2d at 794-95.
4. The deprivations of life and liberty are the wrongs usually sought to be redressed
through application of the Act. See, e.g., Williams v. United States, 341 U.S. 97 (1951).

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