
A party trying to serve their pleading used FedEx, but not the right FedEx. Turns out there are a slew of similarly-named FedEx’s, but only certain ones are approved “designated delivery services” under Rule 4. They used “FedEx Express Saver,” but Express Saver is not on the approved list. The targets moved to dismiss under Rule 12(b)(5), and in this opinion,* Judge Robinson granted the motions.
Judge Robinson made clear that when it comes to service of process, Rule 4(j) requires strict compliance. Depending on the type of party being served, Rule 4(j) allows for service via “designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2).” But the list of authorized delivery services isn’t in Rule 4. It’s buried in IRS regulations. 26 U.S.C. § 7502(f)(2) describes “designated delivery service” as any delivery service so designated by the Secretary of the Treasury. The Secretary’s list of approved delivery services is in IRS Bulletin 2016-18, at IRS Notice 2016-30. A copy/paste of list of approved DHL, FedEx, and UPS is at the end of this blog.
The serving party advanced several arguments to try to avoid dismissal. It argued that the list in the IRS Notice was illustrative, not exhaustive. It also argued that since FedEx Express Saver supposedly met the general requirements for delivery services under 26 U.S.C. § 7502(f) (i.e., was available to the public, at least as reliable as the mail, and delivery date was recorded) the Court should deem it compliant even though it wasn’t on the list. Judge Robinson rejected both arguments, noting that 26 U.S.C. § 7502(f)(2) (apparently, unmentioned by the serving party) goes on to add additional criteria beyond availability and reliability including that the particular service also has to be expressly designated as such by the Secretary. Judge Robinson also points out that IRS Bulletin 2016-18, at IRS Notice 2016-30 clearly states that the enumerated list of designated delivery services is exclusive and does not include other types of DHL, FedEx or UPS delivery services that aren’t on the list.
The serving party also argued that actual receipt of the pleadings and notice of the claims should cure any defects in service. Citing a handful of cases, Judge Robinson made clear that service, as a first step, is necessary to even get to a jurisdictional or practical analysis. Again, Rule 4 requires strict compliance. Judge Robinson granted the motions and dismissed the claims (without prejudice.)
Takeaways:
Check your FedEx. Make sure your team understands the difference between similarly named delivery services. Below is the list of approved delivery services as of October 28, 2024:

See I.R.B. 2016-18 (available at https://www.irs.gov/irb/2016-18_IRB )(last visited October 28, 2024).
Curable defects aren’t always cured. Why challenge service if the defects can be cured? There are lots of reasons. Maybe you want to set a proper adversarial tone or introduce the Court to loose rule-following that may become more important later. Maybe statutes of limitation are in play. Here, I expected to find the cure on the docket. But in the months following the original order finding improper service, there is no clear evidence that these particular targets were ever properly served.
* – This is an Amended Opinion that expressly reflects that adds mention that prior opinion was granted without prejudice and did not reflect consideration of untimely filed affidavits that were submitted after briefing and after the hearing. The substantive analysis on is unchanged.