Gotta Get Back In Time

I think that practically any practitioner who is reading this, will have come upon the reticent Defendant, who refuses to pay for seemingly unfathomably illogical reasons. However, sometimes, not only is the Defendant the blame, but sometimes the attorney is the “butthead.”

We represent a commercial landlord, the “Hill Valley Land Company” who had a truly difficult tenant, “Pleasure Paradise”, owned by the commercial guarantor, “Biff Tannen”.  Despite the good faith efforts of Hill Valley, Biff simply didn’t make the rent payments on time. As such, our firm was retained to recover unpaid rental arrears on the commercial property, and hopefully before Biff could allow the neighborhood to fall into disrepair.

On its face, there was nothing unusual about this case; no space aliens landing on the property, no lightning strikes, no peeping toms, no large piles of manure on the property. Biff just didn’t pay. Since Biff signed a lease and guarantee, and the rent due was a sum certain, we filed suit, with a clear, simple, one-page Complaint. Biff responded by his counsel, his father, one, Irving “The Kid” Tannen. Instead of an Answer, Irving brought a pre-Answer Motion to Dismiss couple with sanctions. The Motion was written in Courier font, written on onion-skin like paper, and smelled of fresh ditto fluid. But just as puzzling as the anachronistic physical document, was the extremely puzzling content of the Motion.

Now, let me preface this by saying that in Gotham City, where I have practiced over twenty years, one files a suit by filing a Summons and Complaint in the appropriate Court, and is assigned an Index Number. Then, the Court-filed Summons and Complaint are given to a private process server to effectuate service of process. After service is made, the process server files the Affidavit of Service with the Court, which includes the exact date and time of service, and the Defendant’s default clock begins to run. This process has been the practice in the Supreme Court of Gotham from since at least 1955, and possibly even as far back as 1895.

But now, here, in Irving’s Motion to Dismiss, his sole basis for dismissal was that there was no Affidavit of Service attached to the Summons and Complaint, nor any date indicating service. (Really, please let that sink in like plutonium in a flux capacitor.)

In what way could the Summons and Complaint could contain an Affidavit of Service, when it is served upon the Defendant? How could the Summons and Complaint contain a date or time it was served?

My papers were simple. “As the Plaintiff’s attorney does not have a DeLorean, T.A.R.D.I.S., Hot Tub Time Machine, nor any invention by H.G. Wells, we are unable to include the Affidavit of Service indicating when the Summons and Complaint are served, when the Summons and Complaint are served.”

The Court decision came back, holding “an affidavit of service indicating the date and time of service must be executed and filed after service of the summons and complaint. Defendant’s contention creates a requirement that does not exist.” I think it was a missed opportunity. The Court should have said it would create a paradox that would destroy the space-time continuum.

Timothy Wan is the Senior Partner of the firm Smith Carroad Levy Wan & Parikh, in Commack, New York, and can be reached at Yes, Tim actually wrote in the memorandum in opposition, the line about “DeLorean, T.A.R.D.I.S., Hot Tub Time Machine, nor any invention by H.G. Wells”.