Strategic Lawsuits Against Public Participation (SLAPPs)
A Traverse Hearing is a pre-trial hearing ordered when a defendant has attacked the propriety of
the service of process in a civil action. Typically, a defendant will raise
the issue of
improper service in an omnibus motion to dismiss plaintiff’s action, which will likely include
attacks on many other aspects of plaintiff’s claim (ie. Standing,
etc.). As the issue of
proper service raises the question of whether the court has personal jurisdiction over a
defendant, judges will usually address the service issue
initially and independently of the
other grounds raised for dismissal.
The general practice is that the court will analyze the defendant’s attack, and if the question
is unresolved and necessitates a hearing, the court will hold the balance of
the motion in
abeyance while awaiting the outcome of the Traverse Hearing. As will be discussed further below,
this is important because the attorney handling the
traverse should be prepared to argue
the balance of the motion at the hearing should the court render a decision after the traverse
at the conclusion of the hearing.
To warrant a traverse, a defendant must do more than simply claim “I was never served.” The
affidavits of service from the process server constitute prima facie
evidence of good
service that a defendant must rebut to merit a hearing on the issue. In defendant’s moving
papers there must be evidence, in admissible form,
supporting the claim of improper
service. The type of evidence can vary greatly, depending on the manner of the service. Personal
service on the defendant, suitable
age and discretion at defendant’s dwelling or place of
business, nail and mail after unsuccessful attempts at personal service etc.
Affidavits from the defendant himself stating he does not reside at the location where service
was alleged may accompany a defendant’s motion. Any affidavits must be
sworn to and from
individuals with personal knowledge. Attorney affirmations, unless the attorney has independent
personal knowledge are not sufficient, although
some judges will consider them anyway.
If during argument of the motion, the court takes into consideration an attorney’s affirmation
without additional evidence from someone with personal knowledge that
should be objected to
and noted on the record, if the court conducts oral argument on the record.
Should the court rule that the defendant has rebutted the prima facie evidence of good service
established by the process servers’ affidavits, it will order a Traverse
Hearing and, and
typically hold the balance of the motion in abeyance pending the outcome of the hearing.
In Kings County, how the hearing proceeds varies from judge to judge. Some judges do not conduct
the hearing themselves, they refer the case to a judicial hearing
officer (“JHO”) to
conduct the hearing. In such instances, the parties must decide whether the JHO’s findings will
be binding on the parties, or whether they will simply
be a recommendation to the presiding
judge. Other judges will conduct the hearing themselves.
The conduct of the hearing itself also varies a great deal from judge to judge. Some judges are
very formal, conducting the hearing almost as it is a trial. Others are
more informal. If
an attorney is unfamiliar with the judge or JHO’s practices, it would behoove them to understand
that particular judge or JHO.
The most important part of conducting the hearing is preparation. The handling attorney should be
fully familiar with the motion work that ultimately gave rise to the
hearing. This is
especially important when the supporting evidence submitted with defendant’s motion includes
affidavits from witnesses that may testify at the hearing.
Typically these motions are
prepared and affidavits reviewed and signed many months before the hearing, and those affidavits
can prove exceedingly valuable when
cross examining those witnesses if opposing counsel has
failed to properly prepare their witnesses.
In advance, it should be confirmed that the process servers have been ordered and are available
on the date of the hearing. In the event an adjournment may be
needed, the court must be
conferred with prior to the hearing and permission obtained from the court. Showing up the day
of the hearing with a stipulation to adjourn
is not advisable.
Typically, plaintiff will be called on first to present its’ witnesses. There may
only be a single witness, if the service was personal service. In the event that there was a
mailing component that was required, the attorney should attempt to have opposing counsel
stipulate to the mailing portion, as the issue is very rarely with any defect
in the
mailing portion.
