The case of the day is Jahanbin v. Rafieishad (Ga. 2013). Jahanbin and Rafieishad, both Iranian nationals (Jahanbin also was a US national), married in Georgia in 2007. In 2011, Rafieishad began divorce proceedings against her husband, who then was in Iran, in the Fulton County Superior Court. After encountering difficulties in serving process, Rafieishad sought direction from the court, which entered an order instructing her to deliver the summons and complaint to the clerk, who was “directed to mail the correspondence” to Jahanbin in Tehran. The clerk, however, disregarded the order and handed the papers back to Rafieishad, instructing her to mail them herself, which she did. This was inconsistent with the literal language of the applicable Georgia rule, which, like FRCP 4(f)(2)(C)(ii), requires that the clerk address and dispatch the mail. The divorce case went to judgment, and Jahanbin moved to set aside the final judgment on the grounds that he had not validly been served with process. The judge denied his motion, and Jahanbin appealed.
On appeal, the court reversed and held that Jahanbin’s objection had merit. This is mindless formalism. Of course, parties should always strive to conform to applicable rules, and there are plenty of cases rejecting service under FRCP 4(f)(2)(C)(ii) where the party failed to request the clerk to mail the documents. Here, though, Rafieishad did everything right, and the clerk failed to follow the court’s order. Is there no argument that Rafieishad was acting as the clerk’s agent when she mailed the documents at the clerk’s direction? Is it sensible to reopen a divorce judgment on these grounds, where there does not appear to be any question about actual notice or prejudice?