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.

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.