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New Court of Civil Appeals Case on Meaning of General Agent Pursuant to Ala Rule Civ Pro 4(c)(6)

Updated: May 27, 2022

Service of process has always been a challenge. Sheriff’s offices, long overworked and underfunded, often struggle to keep up with the service of legal papers. Certified mail and restricted delivery has long enjoyed their own challenges, but COVID has made it practically impossible. A recent opinion of the Court of Civil Appeals illustrates additional hurdles faced by claimants attempting to serve a corporation.

If an entity required by Alabama Code §10A-1-5.31 to designate and maintain a registered agent fails to do so, or the registered agent cannot with reasonable diligence be served, the entity may be served with process as provided by the Alabama Rules of Civil Procedure and may be served with any other notice or demand required or permitted by law to be served on the entity in a manner similar to the procedure provided by the Alabama Rules of Civil Procedure for the service of process. Ala. Code §10A-1-5.35 (1975, as amended).

Rule 4(c)(6), Ala. R. Civ. Pr., provides that service of process shall be made as follows:

CORPORATIONS AND OTHER ENTITIES. Upon a domestic or foreign corporation or upon a partnership, limited partnership, limited liability partnership, limited liability company, or unincorporated organization or association, by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.

The issue in Royal Building Products v. Whisenant Construction, LLC, 2022 WL 1124985 (Ala. Civ. App., April 15, 2022), turned on whether service had been effectuated on an individual whom the plaintiff characterized as a managing or general agent.

In this case, service was made on an individual who could, at best, be characterized as a shift supervisor for production at a manufacturing facility. The defendant argued that this individual had no authority to accept service of process on behalf of the company. According to an affidavit provided by the company, the service documents were ultimately delivered to the human resource manager at the plant who then transferred them to a customer-care supervisor.

The Court of Civil Appeals noted that both federal and state courts have liberally construed the phrase “managing or general agent.”

Courts have upheld service upon a sales manager or another person in charge of a sales agency; a local or district manager; a division manager; a fiscal agent who was also a treasurer and a director; a hotel manager acting as an agent for the foreign corporation that owned the hotel; an agent of a mortgagee who collected rents, kept books and supervised buildings; a factory representative; and a technical representative.

The court did not find that a shift supervisor couldn’t be deemed a “managing or general agent.”

The court held that the plaintiff had presented no evidence in support of its assertion that the “shift supervisor” should be deemed to qualify as such an agent, finding that the fact that the paperwork ultimately wound up with someone who knew what to do with it was not sufficient. As a result, a default judgment for $46,706.82 was set aside.

Ensuring proper service is important. Establishing the facts necessary to support that service is critically important if service is ever challenged. Hindsight is 20/20. But so is foresight for those who appreciate the takeaways from this case.

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