This document discusses whether service of process on a non-resident journalist was valid when the journalist was induced to enter the forum state of Tennessee under false pretenses. It summarizes the standard for quashing service of process due to fraudulent inducement, and argues that the plaintiff in this case, Coburn, fraudulently induced the defendant, journalist Martinez, to come to Tennessee for settlement negotiations before serving him with process. The document analyzes previous cases where courts quashed service on non-residents who were induced to enter a state for settlement discussions but were then served without warning or time to leave. It contends Coburn took preliminary legal actions and never intended genuine negotiations, so Martinez's presence in Tennessee was invalid for service of

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TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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QUESTION PRESENTED
1. Whether personal service within the forum state of Tennessee is valid when non-resident
journalist’s presence in the state was induced by resident offering what was said to be
more newsworthy material, and whether such invitation was for the purpose of securing
service of process executed upon appellee’s recommended extended stay.
STATEMENT OF THE CASE
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SUMMARY OF ARGUMENT
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I. SERVICE OF PROCESS SHOULD BE QUASHED AND THE COMPLAINT
DISMISSED WHERE FRAUDULENT INDUCEMENT TO ENTER AND OR
ENTICEMENT TO REMAIN WITHIN THE FORUM EXISTS
Service of process is valid when served upon a nonresident’s temporary physical
presence within the forum state subject to certain limitations. Burnham v. Superior Court of
California, City. of Marin, 495 U.S. 604, 604 (1990). In abiding by the, “traditional notions of
fair play and substantial justice,” courts establish a viable interest in the present nonresident
through the rule of transient jurisdiction. Id. at 606, 619.
An “abuse of process” is subject to motion to quash service of process and or motion to
dismiss the complaint entirely. Buchanan v. Wilson, 254 F.2d 849, 850 (6th Cir. 1958). The
court may use its discretion to grant either or both motions 12(b)(5) to quash service of process
and 12(b)(2) to dismiss the complaint. Id. Courts have previously considered both the plaintiff’s

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ability to accomplish an alternative and proper service of process and the degree of plaintiff’s
foul play and bad faith in serving process. See, e.g., Voice Sys. Mktg. Co., L.P. v. Appropriate
Tech. Corp., 153 F.R.D. 117, 120 (E.D. Mich. 1994). Some courts only consider the fraudulent
service and will not address the plaintiff’s potential burden. K Mart Corp. v. Gen-Star Indus.
Co., 110 F.R.D. 310, 315 (E.D. Mich. 1986). Because inducement to both enter and remain for
the purpose of attaining service are relevant in the present case, the court should attribute greater
weight to Coburn’s fraud than her potential burden.
A. Standard of Review
The court should adopt the most deferential standard of review as to affirm the District
Court of the Northern District of Tennessee’s decision to grant both Martinez’s motion to quash
service of process and motion to dismiss the complaint. On appeal the court should review under
a clearly erroneous standard as to address “the factual findings underlying the court’s
conclusion.” E.g. Manville Sales Corp. v. Paramount Sys., 917 F.2d 544, 549 (Fed. Cir. 1990).
B. Coburn induced Martinez to enter Tennessee and further remain there with the allure of
negotiation and illusion of resolution.
The Supreme Court of the United States has established an exception to the rule of
service upon a physically present nonresident which is best articulated by Chief Justice Fuller:
“If a person is induced by false representations to come within the jurisdiction of a court for the
purpose of obtaining service of process upon him, and process is there served, it is such an abuse
that the court will, on motion, set the process aside[.]”Fitzgerald & Mallory Const. Co. v.
Fitzgerald, 137 U.S. 98, 105 (1890). The exception has been extended beyond inducement to
enter to inducement to further remain in the state for the purpose of serving process. See
Buchanan v. Wilson, 254 F.2d at 850. If a resident invites a nonresident into the forum state for
negotiations, the resident must either warn the nonresident that there is a potential for service of

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process or give the nonresident adequate time to leave before service is attempted. See generally
E/M Lubricants, Inc. v. Microfral, S. A. R. L., 91 F.R.D. 235 (N.D. Ill. 1981).
1. Coburn lured Martinez into Tennessee after preliminary long-distance negotiations failed.
Contrary to the District Court’s finding and based on Martinez and Coburn’s preceding
phone conversations and Coburn’s embedded communications with her attorney, Coburn
fraudulently lured Martinez into Tennessee. R. 154,156. If the court finds that Coburn’s
proactive attorney-client communication and premature legal action indicates no intent to settle
upon drawing Martinez into Tennessee, the court should render such presence in Tennessee
invalid for service of process. See Citrexsa, S.A. v. Landsman, 528 So. 2d 517, 518 (Fla. Dist. Ct.
App. 1988).
The court in Coyne v. Grupo Indus. Trieme, S.A. de C.V., 105 F.R.D. 627 (D.D.C. 1985),
agrees with 100 years of application of the rule that, “process is invalid where a defendant has
been lured into a jurisdiction.” Id. at 629. The focal point is the disconnect between a defendant
that is hopeful and willing to engage in continued bona fide negotiations and a plaintiff that is
bitter and deceptive in retaining convenience of forum: “If appellant was induced, by the
representations of appellee, to come within this jurisdiction for the purpose of a conference
having for its object ‘an amicable settlement,’ service upon him was an act of bad faith
amounting to misrepresentation.” Id. at 630 (quoting Fischer v. Munsey Trust Co., 44 App.D.C.
212 (1915)). The defendant who has been invited into the jurisdiction for the particular purpose
of settlement negotiations but who has neither been forewarned that service may be attempted if
negotiations fail nor given a reasonable time to leave the jurisdiction before service is attempted
is not subject to service of process. W. States Ref. Co. v. Berry, 313 P.2d 480, 481-82 (1957).

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The plaintiff and defendant in Coyne engaged in ongoing long-distance discussion
regarding two different issues before plaintiff definitively invited defendant to Washington to
resolve the subsequent dispute. Coyne, 105 F.R.D. at 627-28. Plaintiff had already instructed his
attorney to draft papers in preparation of suit in regards to the first issue and told defendant about
the pending lawsuit, however, did not indicate the possibility of or intent to serve defendant upon
his presence in Washington. Id. at 627-29. The court both quashed service of process and filed an
Order to dismiss the complaint. Id. at 630-31.
In Western States Refining Co. v. Berry, defendant Idaho resident leased a service station
to plaintiff Utah corporation petroleum distributor in Rexburg, Idaho. W. States Ref. Co., 313
P.2d at 481. When long distance settlement attempts failed, plaintiff instructed his attorney to
further negotiations with defendant by going to Idaho with the intent to bring him back to Utah if
settlement was not thereupon reached. Id. Because settlement was not achieved plaintiff’s
attorney invited defendant to Utah where plaintiff again attempted settlement. Id. After yet
another unfruitful negotiation, plaintiff served nonresident defendant with process before he
could retreat to Idaho. Id. The court granted defendant’s motion to quash service of summons,
holding that,
[W]hen plaintiff extends an invitation to defendant to enter the jurisdiction for settlement
negotiations, equity and good conscience will not permit plaintiff to take sharp advantage
of defendant’s presence in the jurisdiction so long as defendant is in the jurisdiction for
the purpose for which plaintiff invited him.
Id. at 481.
The source of Coburn and Martinez’s dispute is a series of tapes Martinez obtained that
contain intimate and confidential recordings of Coburn’s therapy sessions with Dr. Plano
following the Dewey City police incident. R. 47. Coburn was adamant about speaking with
Martinez and convincing him that they were not to be published. R. 132-33. She requested that

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Dr. Plano give appellee her phone number. R. 154-55. Coburn insisted on initiating what shall be
considered an extended and ultimately unsuccessful negotiation that culminated in fraudulent
service of process upon Martinez’s presence in Tennessee.
Coburn first attempted negotiations over the phone like plaintiffs in both Coyne and
Western States Refining Co. She offered him money, which he declined, and then proceeded to
entice him with information that she thought he would find “very interesting” regarding the
notorious Dewey City police matter with which he was concerned. R. 133, 159. Coburn
contradicts herself in testifying that she actually, “didn’t have any way of knowing what he
would consider old news and what he would find interesting.” R. 163. Martinez agreed in good
faith to forbear from publishing the tapes until he could see what Coburn had to offer in
exchange. R. 134. Coburn offered no reciprocal consideration for his forbearance. Martinez was
therefore traveling down a one-way-street of negotiation.
At this point, Coburn had already made prior arrangements suggestive of potential
litigation. Similar to plaintiff’s request for the preparation of papers in Coyne, Coburn authorized
preparation of the lawsuit prior to knowledge of Martinez’s identity at the end of March. R. 154.
Coburn sought legal consultation and took further preliminary legal action when she called her
attorney after her initial conversation with him on April 3. R. 156. Before Coburn and Martinez
spoke again on April 5, Coburn had already attached Martinez’s name to the generic lawsuit
composed within the first week of April. R. 156, 165. Coburn reviewed a set of subsequent court
papers with TRO request to serve on Martinez in New York on April 6. R. 166. After an
unsuccessful first encounter and discussion of the tapes on April 8, Coburn requested that papers
be drawn with a TRO to be served upon Martinez in Tennessee . Id.

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Like plaintiff in Western States Refining Co., Coburn attempted multiple negotiations all
of which proved unfruitful before process was served. The service was similarly premeditated
upon a non-resident defendant with whom resident plaintiff sought settlement. Coburn’s initial
long-distance attempts at negotiating with Martinez proved equally unfruitful. Coburn
consistently consulted her attorney, indicating at the very least the potential for and ultimately a
strong likelihood of litigation. Oblivious to Coburn’s litigation already in the works, Martinez
was lured into Tennessee like the defendant in Coyne was lured into Washington. Therefore
Martinez’s presence in Tennessee was not valid for service of process.
2. Coburn induced Martinez to remain in Tennessee after in-person negotiations failed.
Where defendant has voluntarily entered the jurisdiction but has been fraudulently
induced to remain at plaintiff’s request, service of process made upon such an extended presence
constitutes “an abuse of process.” Buchanan, 254 F.2d at 849 (6th Cir. 1958). The plaintiff must:
(1) … communicate to defendant before defendant enters the jurisdiction that pre-lawsuit
negotiations are no longer feasible or that plaintiff has chosen to pursue legal remedies;
or (2) … forego service of process on a defendant who is in the jurisdiction for the
exclusive purpose of discussing settlement.
E/M Lubricants, Inc., 91 F.R.D. at 238. This “bright-line rule” shows the court, “whether the
plaintiff intended to file a complaint at the time the parties were arranging the settlement
meeting.” K Mart Corp., 110 F.R.D. at 313. The court will infer that the settlement meetings
were either bona fide or fraudulent. Id.
In K Mart Corp., the plaintiff prepared a complaint after arranging a prospective
settlement talk. Id. at 312. Defendant still entered the territory on the scheduled day expecting to
solely engage in and reach settlement. Id. The court deemed plaintiff’s failure to forewarn
defendant of his sudden change of heart a bad faith gesture and ordered service quashed and the
complaint dismissed. Id. 315.

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The court in Voice Sys. Mktg. Co., L.P deemed non-resident defendant’s voluntary
entrance into the state secondary to plaintiff’s fraudulent request for his remaining an extra day
to flesh out customer complaints regarding defendant’s defective product with various members
of the plaintiff corporation. Voice Sys. Mktg. Co., L.P., 153 F.R.D. at 119. After securing
defendant’s presence in the state for another day, plaintiff filed a complaint and served defendant
the following day in place of the fictitious meeting. Id. Since plaintiff did not give defendant a
chance to leave the forum state before attempting service and even went so far as inducing
defendant to stay for the purpose of serving process, such process was quashed and the complaint
dismissed with prejudice. Id.
Coburn took advantage of Martinez’s presence in Tennessee similar to plaintiff’s abuse
of defendant’s presence in Voice Sys. Mktg. Co., L.P. The distinction is that Coburn and
Martinez did actually engage in some form of discussion on April 8 and April 9 before the
service occurred. However the District Court determines that such discussion was not a bona fide
attempt at resolution. Coburn, slip op. at 11. Coburn’s discussion with her attorney and the
presence of the process server Mr. Portney indicated a more devious approach to the subsequent
April 9 meeting. The District Court found Martinez’s attendance on the morning of April 9 the
result of, “an inducement that had become tacitly fraudulent.” Id.
Coburn had the option of warning Martinez, before inducing him with the allure of
documents that she, “was quite sure he had never seen and would find extremely interesting,”
that his decision to remain through April 9 and eventual failure to reach resolution would avail
him to service of process. R. 163. Coburn should have also allowed Martinez the opportunity to
leave the jurisdiction if and when negotiations did not reach resolve. E.g. E/M Lubricants, Inc.,
91 F.R.D. at 238; E.g. Allen v. Wharton, 13 N.Y.S. 38, 39-40 (Gen. Term 1891). Coburn’s

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choice to abstain from fair play is an indication that she acted with deceit, artifice or fraud in
requesting Martinez to extend his stay in the forum state through April 9. Her failure to do either
supports a decision similar to those reached by the courts in Coyne, E/M Lubricants, K Mart
Corp., and most recently by the United States District Court of the Northern District of
Tennessee which promote both quashing service of process and dismissing the complaint. K
Mart Corp., 110 F.R.D. at 315; Coyne, 105 F.R.D. at 630-31; E/M Lubricants, Inc., 91 F.R.D. at
238.