3. CAPÍTULO 3: Análisis de portadas de Eduardo García Benito entre 1918 y
3.2. APLICACIÓN DEL ANÁLISIS
3.2.1. PORTADA 1: 1928
The State argues that § 470 furthers its interest in adjudicating disputes over service of process and interlocutory papers—that is, “legal papers served in the course of litigation other than those that initiate the litigation,” Appellants’ Br. 23—because only witnesses “found in the state” can be subpoenaed in service
dispute hearings. Id. 27-28 (citing N.Y. Jud. Law § 2-b(1)). But the State has not
shown that this interest is substantial or closely related to the office requirement.
1. To qualify as “substantial,” the State’s interest in adjudicating disputes
over service of interlocutory papers and process must address a problem that
applies to more than a small percentage of nonresident lawyers. Cf.Piper, 470 U.S.
insubstantial because a “high percentage” of nonresidents were likely to be available). New York has not shown that its interest in adjudicating service
disputes applies to any significant number of cases involving nonresident lawyers. To begin, witness testimony is unlikely to be relevant in most disputes over service of interlocutory papers. Given that interlocutory papers can be served by
mail—in which case service is effective upon mailing, not upon receipt—or by fax
or electronic means, N.Y.C.P.L.R. § 2103(b), witness testimony would only be relevant when interlocutory papers are served personally. But personal service is
expensive, and cheaper means—such as fax, email, or mail—are available. See id.
As a result, interlocutory papers are likely served personally in only a tiny number
of cases. Indeed, New York’s own court system now requires electronic service of
interlocutory papers in many commercial, contract, and tort cases. See 22
N.Y.C.R.R. § 202.5-bb; Admin. Order of the Chief Administrative Judge of the
Courts (Jan. 12, 2012), available at www.nycourts.gov/supctmanh/AO%20Efil
%201-12-12.pdf. A state that demands electronic service of interlocutory papers
can hardly have a substantial interest in adjudicating disputes over personal service
of interlocutory papers.
The same applies to the State’s interest in adjudicating disputes over service of process. New York law already requires nonresident lawyers to designate the clerk of the appellate division as their agent for service of process in malpractice
actions against them. See 22 N.Y.C.R.R. § 520.13(a). As a result, the State cannot argue that § 470 advances its interest in adjudicating disputes over service of process on a lawyer in cases concerning the lawyer’s legal services. Instead, the State argues that it has an interest in adjudicating disputes over service of process on a nonresident lawyer acting as an agent for her client. The State points out that,
under New York law, a lawyer may automatically become an agent of a client. See
N.Y.C.P.L.R. § 303. But this statute applies only to a narrow subset of cases. Specifically, when a lawyer represents a plaintiff in state court and the plaintiff otherwise would not be subject to the personal jurisdiction of New York, the lawyer automatically becomes the client’s agent for purposes of service of
process—but only for actions that could have been raised as counterclaims in the
plaintiff’s original lawsuit. See id. The State does not point to a single case where a
lawyer’s out-of-state location prevented a court from adjudicating a service dispute arising in this kind of situation. For lawyers whose clients have sufficient contacts with New York to be subject to personal jurisdiction, as most clients who bring a lawsuit in New York would, § 303 is inapplicable, and the office requirement does nothing to further the State’s interest in ensuring witnesses are available for
disputes over service of process.
2. Even assuming that the State has a substantial interest in ensuring that
would “further[] the State’s purpose without implicating constitutional concerns.”
Friedman, 487 U.S. at 67 (citation omitted). As the district court noted, the State
could simply require nonresidents to designate an agent for service within the State. JA 34. This alternative would directly serve the State’s interest in ensuring that witnesses are available for service dispute adjudications, and it would be much less burdensome than the office requirement, as a registered agent for service in
New York can cost as little as $75 per year. See National Registered Agent,
http://www.nationalregisteredagent.com/new-york-registered-agents.aspx (last visited Apr. 20, 2012). Although the State claims that § 470 reasonably can be interpreted to require nothing more than this less restrictive alternative, New York
case law indicates otherwise. See supra Part I.A.
B. Section 470 is not closely related to any substantial state interest in facilitating lawyers’ availability to New York courts.
The government offers a final, unconvincing justification for § 470—that it “increases the likelihood” that nonresident lawyers will be “more accessible to the New York courts on short notice.” Appellants’ Br. 44. It is unlikely that this
interest is substantial, given that “modern communication systems, including conference telephone arrangements, make it possible to minimize the problem of
unavailability.” Frazier v. Heebe, 482 U.S. 641, 649 (1987).
Even assuming it is substantial, however, § 470 is not closely related to this objective. The statute does not ensure that lawyers are available to appear in New
York courts on short notice. A lawyer who resides in Alaska could arrange an office sharing agreement to comply with § 470, but this would involve nothing more than the option to use the New York firm’s office space on occasion and would not make the Alaska lawyer any more available to New York courts on short notice. Similarly, a nonresident lawyer with an office in Hoboken could rent an office in Buffalo, perhaps to take advantage of lower rent, and this would not make the nonresident any more available to Manhattan courts on short notice. Section 470, therefore, does not ensure that lawyers are available to appear in New York courts on short notice.
Furthermore, the State’s incorrect interpretation of § 470—that it requires only an address at which there is an agent who can receive service of process—
likewise does nothing to ensure that a nonresident lawyer, as opposed to his or her
agent, is available on short notice to appear before New York courts. The statute can hardly be justified by an interest the State’s own interpretation does not advance.
* * *
Despite the State’s attempt to rewrite § 470 to make it constitutional, the statute’s text and New York case law show that § 470 cannot reasonably be read to require only an address for service within the state. Far from being “incidental,” Appellants’ Br. 37, the burden § 470 imposes on nonresidents results in significant
financial and administrative costs, heightens their business and litigation risks, and thereby precludes nonresident lawyers from entering the New York legal market on equal terms with New York residents. Because the State has not shown that either of its asserted interests justifying the statute is substantial and closely related to the office requirement, § 470 cannot withstand constitutional scrutiny.
CONCLUSION
For the foregoing reasons, the decision below should be affirmed.
Respectfully submitted, s/ Leah M. Nicholls Leah M. Nicholls Brian Wolfman
Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue, N.W., Suite 312 Washington, DC 20001
Tel: (202) 662-9546 Fax: (202) 662-9634
Email: [email protected]
Counsel for Amici Curiae*
Date: April 24, 2012
*
Counsel gratefully acknowledge the work of Tara Stearns and Ray Tolentino, third-year students at Georgetown University Law Center, who played key roles in researching and writing this brief.
CERTIFICATE OF COMPLIANCE
Counsel for amici curiae certify that the foregoing brief complies with the
type-volume limitation of Fed. R. App. R. 32(a)(7)(B) because it contains 6,926 words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2008 in 14-point Times New Roman font.
April 24, 2012
s/ Leah M. Nicholls Leah M. Nicholls Brian Wolfman
Institute for Public Representation Georgetown University Law Center 600 New Jersey Ave., NW, Suite 312 Washington, DC 20001
Tel: (202) 662-9546 Fax: (202) 662-9634
Email: [email protected]
APPENDIX: LIST OF AMICI CURIAE
Michael H. Ansell, Esq. Ansell Grimm & Aaron
1500 Lawrence Ave., CN 7807 Ocean, NJ 07712
(732) 922-1000
[email protected] Resident of New Jersey
Admitted in New York and New Jersey Carl G. Archer, Esq.
Maselli Warren, P.C. 600 Alexander Rd. Princeton, NJ 08540 (609) 452-8411
[email protected] Resident of New Jersey
Admitted in New York, New Jersey, and Pennsylvania
Victor Badell, Esq.
4700 Biscayne Blvd., Suite 500 Miami, FL 33137
(305) 573-0850 [email protected] Resident of Florida Admitted in New York Simone Bertollini, Esq.
The Law Offices of Simone Bertollini 388 Pompton Ave.
Cedar Grove, NJ 07009 (973) 750 8922
[email protected] Resident of New Jersey
Admitted in New York and New Jersey Michael Carlucci, Esq.
Collopy & Carlucci, P.C.
540 Speedwell Ave. Morris Plains, NJ 07950 (973) 539-446
[email protected] Resident of New Jersey
Admitted in New York, North Carolina, and New Jersey
Sydney J. Chase, Esq.
700 South Ocean Blvd., Apt. 903 Boca Raton, FL 33432
[email protected] Resident of Florida
Admitted in New York Rodrigo Da Silva, Esq.
Astigarraga Davis
701 Brickell Ave., 16th Floor Miami, FL 33131
(305) 372-8282
[email protected] Resident of Florida
Admitted in New York, New Jersey, and Florida
Greg DePaul, Esq. DePaul Law Firm LLC 505 Morris Ave., Ste. 205 Springfield, NJ 07081 (973) 376-8585
[email protected] Resident of New Jersey
Admitted in New York and New Jersey Carolyn Elefant, Esq.
Law Offices of Carolyn Elefant 1629 K St., NW Ste. 300
Washington, DC 20006 (202) 297-6100
[email protected] Resident of Maryland
Admitted in New York, Maryland, and the District of Columbia
Robin J. Gray, Esq. P.O Box 4322 Reading, PA 19606 (610) 689-0877 [email protected] Resident of Pennsylvania
Admitted in New York, New Jersey, and Pennsylvania
Gregory Herman-Giddens, Esq. Trust Counsel
205 Providence Rd. Chapel Hill, NC 27514 (919) 493-6351
[email protected] Resident of North Carolina
Admitted in New York, North Carolina, Florida, and Tennessee
Regina Waynes Joseph, Esq. Attorney at Law
320 Araneo Dr.
West Orange, NJ 07052 [email protected] (973) 676-4233 Resident of New Jersey
Admitted in New York and New Jersey Brendan J. Klaproth, Esq.
Basyuk & Klaproth LLP 1725 I St. NW, Ste. 300 Washington, DC 20006 Tel: (202) 618.2344 [email protected]
Resident of the District of Columbia Admitted in New York, the District of Columbia, and Massachusetts
Paul G. Kostro, Esq.
726 West Saint Georges Ave. P.O. Box 307
Linden, NJ 07036 (908) 486-2200 [email protected] Resident of New Jersey
Admitted in New York, New Jersey, Pennsylvania, and the District of Columbia (inactive)
Laura S. Mann, Esq.
Law Offices of Laura S. Mann, LLC 179 Cahill Cross Rd., Ste. 205 West Milford, NJ 07480 (972) 506-4881
[email protected] Resident of New Jersey
Admitted in New York, Ohio, and New Jersey
Richard H. Maurer, Esq. 3400 W. Coulter St. Philadelphia, PA 19129 (267) 297-5470
[email protected] Resident of Pennsylvania
Admitted in New York, New Jersey and Pennsylvania
John J. Mueller, Esq. John J. Mueller, LLC 632 Vine St., Ste. 800 Cincinnati, OH 45202 (513) 621-3636 [email protected] Resident of Kentucky
Admitted in New York, Ohio, Kentucky, and Indiana
Michele A. Peters, Esq.
N. Haledon, NJ 07508 (201) 225.8233 [email protected] Resident of New Jersey
Admitted in New York and New Jersey Antonio D. Pyle, Esq.
227 Upper Baird Rd. Stowe, VT 05672 (802) 252-2025
[email protected] Resident of Vermont
Admitted in New York, Vermont, and Pennsylvania
Mitchell J. Rotbert, Esq.
Law Office of Mitchell J. Rotbert 13640 Valley Oak Cir.
Rockville, MD 20850 Phone: (240) 600-6467 [email protected] Resident of Maryland
Admitted in New York, Maryland, and the District of Columbia
John Sheehan, Esq. 102 Claybrook Rd. Dover, MA 02030 (508) 785-1901
[email protected] Resident of Massachusetts Admitted in New York and Massachusetts
Sara A. Weinstein, Esq.
11150 W. Olympic Blvd. #1120 Los Angeles, CA 90064
(310) 850-3949 [email protected] Resident of California
Admitted in New York, California, New Jersey, and the District of Columbia
CERTIFICATE OF SERVICE
I hereby certify that on April 24, 2012, a true and correct copy of the
foregoing Brief of New York-Licensed Nonresident Attorneys as Amici Curiae in
Support of Plaintiff-Appellee was served on all counsel of record in this appeal via CM/ECF pursuant to Second Circuit Rule 25.1(h)(1)-(2).
s/ Leah M. Nicholls Leah M. Nicholls