capacity here the sole issue on the fourth amendment claim as mr wiggins i'm sorry to cut you off so soon but are you also appealing on the state look claims we are appealing the dismissal of the state law claims frankly i do not see a way where we lose on the fourth amendment claim but went on the state claim so the fourth amendment is the focus of the merits if you on the merits that's correct immunity law is very different the immunity law is certainly different elements and the liberty interest at stake is the same and you're basically saying that if the fourth amendment claim falls that's it you don't want to consider the say look i'm separately  i'm certainly happy if the court considers the state law a claim separately i said that because the focus of my argument today will be on the fourth amendment claim and i'm more than happy to answer any questions on the state law but i am comfortable resting on the pleadings on those claims with respect to the federal fourth amendment claim the issue the fourth amendment issue is mr wiggins duty of individual i suspicion and probable cause prior to having mr you arrested his duty to s was addressed to michael were you registered agent it's a very specific situation this case where the requesting officer identifies the party to whom the collection documents are addressed in a very specific capacity that strictly delimits his role as registered agent is still received a summons to appear in court he did the summons was addressed to michael reregistered agent and obviously as a registered agent his sole purpose was to receive his house and he did receive it yes appear in court as the summons required him to do he did not because he was identified as registered agent so he acted like one he forwarded to to his principal so he just decided not to comply with a court order your honor i will direct you to page seventy five so up until this point the only he had also been served with a warrant and debt being served as being served as a registered agent in a defendant and i understand you think that that is erroneous but nevertheless here it is he's been summoned i understand that on scrutiny of the document it is arguable that he is being searched it says that he is the defendant or a cow ever since a lawyer has how long has he been a lawyer i'm not completely sure several years he's been a lawyer and then he didn't comply with the summons and based on the warrant was issued for his arrest is the warrant itself unreasonable mr you was personally served in the sense that he was handed a document if or rather accepting the position that personal service in the sense of coming into contact with a document that identifies the party as a registered agent if that serves to put the recipient of the document on notice there are huge due process problems lurking in the background of accepting that argument there was no sense that he was debt or intended appears at page fifty at this point he is not a he is not identified as the defendant the defendant is identified as c s property and the party to be served michael re you registered agent so given the specific chronology of this case he served with the warrant in debt or the defendant is identified as properly as c s property and then later he served with the summons as registered agent i know who the defendant in th s property i've come into contact with the task election documents so far so i submit respectfully that there is no sense that he was on notice that he stood to be arrested upon coming into contact with this document mr whitten identified the capacity in which he was being served personally serves the registered agent that is his sole job is to be personally served there's no sense that he was on notice and i i hope to impress upon the court that there is a major difference for due process reasons and in the fourth amendment question there's a major difference between personal service in the sense of being handed a document and being served in one's personal capacity which would give someone fair notice that they stand to they are being asked to comply with the document he was not served in his personal capacity there's not a due process claim in this case is there no there's not i bring up the due process issue brooke kind of as a  due process problem i mean excepting the argument that this constituted notice raises due process problems and so i say that if he was in before us and no one would be accepting or not accepting that argument i guess i just don't understand where due so the due process issue was is i identify it as a reason that it's impossible to interpret this document as putting him on notice you're correct of there is no due process claim before the courts and maybe he needs to go back to court and say look at this i got arrested and i wasn't on notice i'd like to bring into process claim i mean how do you be on how do you been on notice do you mean i'm sorry do you mean in the civil litigation yeah ok so we have a due process claim below and frankly dropped it because the liberty interest here we're talking about is arrest and so the supreme court supreme court case law is clear that that is located in the fourth amendment so you can't bring a due process claim in this context we felt that focusing the issues on appeal was appropriate so right that you think was violated was his fourth amendment right against unreasonable search when we evaluate those we look at the warrant and whether or not it was supported by probable cause in the war is j seventy eight what what is not correct about this one so the warrant was the reason is definitive failed to appear after personal service you said earlier that he did receive personal service in the sense that he was handed a document yes  rat's joy that's what a registered agent is he is a human p o box act i'm not talking about the order to get him to court that he did not comply with i'm talking about the what you're the presumption of reasonableness that attaches to a warrant simply isn't present here because there is not someone scrutinizing the document which brings me to your point why is this document problematic a clerk in a court is entitled to rely on representations that a court officer makes to it here this warrant was procured through the misrepresentation that mr review had any capacity to answer for any corporate debts he simply did not as registered agent as mr witt knew prior to requesting it he had the f c c records in his file showing mr reo on the one hand and as a registered agent and the corporate directors on the other hand is not mr reeves totally different people as you say the registered agent did he did did he tell his clients to appear in court before and he forwarded this to his corporate principals he was not in an attorney client capacity with them at that point he was just the registered agent he had assisted in helping them create the court form the corporation and then later on was bankruptcy counsel and an unrelated proceeding but at this point he was not their lawyer he had no duty to scrutinize the document and he was handed it and it said registered if you were served with this and told to appear in court and said after it registered agent you would just spend it on to your client be about your business i mean i don't i speaking personally i just can't imagine getting a court order and not going in appearing and explaining i don't know anything about this i just i was really sort of awestruck by me do this frankly i can't i'm out i've never been in the position of registered agent or my entire job is to receive legal papers obvious fact that he was registered agent but they're designation of him is registered agent well that's the only thing and it would be different in my hypothetical he would just not say on it registered agent but he would still have no obligation to go in finish answering there's a long line of cases that say just because you've identified the wrong party doesn't mean you can ignore a valid court order this what we're asking the court to hold that would not intrude upon the line of cases this is a very specific fact pattern he's identified in a capacity that strictly delimits his role it would be a different story if he wasn't there's you know people are mis identified on court documents all the time it doesn't mean they can ignore them here his entire job was to receive legal papers he was identified as a registered agent so he acted like one thank you morning please the court julia judkins for daniel with the county attorney for warren county i believe you're on his have focused on the issues here this is not a fourth amendment case because at worst was negligent and where was he negligent at worst when he signed the warrant in debt that contained if you look at the underlying record that contained about twelve to fifteen pages of documents and didn't look at the screenshot from the state corporation commission there are several sheets in the original mournin debt and they contain screen shots one is the registered agent screen shot one is the one identifying who the officers were so mr whitten who comes to work for the county in two thousand and ten with a procedure in place put in place because a general district court judge told the then county attorney you all got to serve the registered agents when you file these cases are so at worst we have a negligence case because the lawyer is the captain of the ship no matter who prepares the pleadings and the of the record below shows these things coming in batches of two to four hundred at a time there docketed twenty five to thirty at a time and he signs the warrant in debt and it's actually properly prepared at that point but he never personally checked w also an officer an agent as process went on he soon he was he sent it was why because he's a lawyer of limited experience who didn't look at what the documents said and mr ru never showed up for anything anything in this case you can't ignore the bankruptcy pleading proceedings are extremely relevant because when the warrant was served there was no bankruptcy mr root testified i filed the bankruptcy because i got served with the warrant debt and he filed pleadings with the bankruptcy court saying these are going to be my duties including negotiating with creditors the registered agent who is not also an employer director right you're not you're not supposed to treat them as no more than because you are in fact conceding that the summons was in error well i guess what happened before that is relevant if the court is going to look into whether or not find them tricky so the district court just said well there's qualified immunity on the fourth amendment claim so i'm just dismissing all the claims against him and i think you can see that there is no qualified immunity for gross negligence or intentional torts and virginia right there is no sovereign some virginia cases we've cited the ch'an case where the judges used qualified immunity instead of sovereign immunity sometimes they use it in interchangeably and they really shouldn't there are two different things  e yes you could you could because but the one thing it's very important in this case is we're not talking about a warrant in a criminal case everyone's using the word warrant we're talking about a k p s attachment of the body us who said man is the architect of his own fortune i argue to you mr roux was the architect of his own misfortune for there was the reasons you questioned mr ruse counsel this document is the summons it actually had been prepared properly would have had the defendant's name where where the defendant line is and if it was also serving the registered agent under the statute because he was the company's out of state server also that's what it would've been now mr rue based on this record he had no more idea than the man in the moon whether or not this was properly served on him he admitted he didn't even know he should have been arrested till he went back to his office after released and looked up the statute if any any person of light any reasonable person looking at this can see this is a mistake he's he's the person summoned though he is the person summoned and it doesn't matter whether it says after his name esquire or mr or doesn't matter he didn't conclude that he didn't have the obligation because of the existing law he just sent he just had his assistant fax it over to mrs kim who doesn't speak english who needs an interpreter and he never even called her up and said hey you know  know he could've picked up the phone and called mr whitney and you've got this this is wrong this is a mistake so it's boy you know ball but one cannot just sit in under virginia law and that's why this isn't a fourth amendment case he wasn't seized in violation of the fourth amendment he was arrested because he ignored of validly issued court summons and i can't piss for civil for attachment of the body for civil contempt was issued and it was properly issued and all of it could have been avoided had he just done whatever he should have done it all could have been avoided to write of missed it and had checked before the summons went out to make sure that he was in fact an employee or director of the company if that's true that's where that's where things really went off the rails but it does start back for a series of failure to adequately identify the county as a creditor for these taxes i think for me at least and i don't speak for my colleagues but it would be very helpful for me if we just assume mr witt messed this up i didn't say that ok i just check and so i mean it just going gross negligence the want of even scant care this gentleman mr rowe was served multiple times with pleadings so that your all of your argument here just so i can understand it because it's  hard for us to scan exactly what you're doing or it hard for me i should speak only for myself all this is directed at the state claims no this is it's not a fourth amendment claim oh you mean all my argument no no i'm addressing the fourth amendment claims because i'm not sure it's not clear i didn't i wouldn't i'm just curious now since you didn't raise it it's way but why wouldn't apply well i think arguably it could apply to that one instance when they were in court and the judge i want to clarify it was a judge involved in this process issued a k p s not just a clerk but arguably it could apply at that level in the court proceeding when mr whitten you've got it in the record in the appendix appears before the general district court judge on the return for the and the judge says and that's what happens in general district court the judge says you've got personal service do you want are you going are you requesting a k p s yes i'm requesting a k p s so it's not just a clerk the a best a negligence argument against mr whitten that doesn't support a constitutional violation so then you go to the state law claims and you have sovereign immunity and no everybody admits on deposition by mr and well i thought everyone agreed there is no immunity on gross negligence and intentional towards their it depends on the facts that are developed because you can find and someone can sue for motion to dismiss and the evidence i don't think anyone can argue looking at the record that mr whitman was grossly negligent intentionally did anything the facts are laid bare and they're not disputed that my client didn't kno first could make a run of gross negligence no not under before he had this guy summoned he didn't bother to check whether he was an appropriate target of a summons virginia law is a lot is pretty strict on gross negligence case came out a couple of years ago in the elliott case the want even scant care scant no you take some care if you're did he take to make sure that the summons was going to someone who could receive a summons the record he just assumed like i've never seen it were registered agent isn't an employee but an assumption isn't taking you know you if you did your records would be the skin care if you do deeper in the record like he might have checked his records and there was a mistake in the record keeping and then you deck when he should have been but that's not gross negligence under virginia law virginia was very clear and why because she was a paralegal who prepared these pleadings on a regular basis and part of her job was to check who whether the registered agent was also an officer he only he can but where you can escape liability in a malpractise or negligence action by saying hey i relied on my experience paralegal this is the process put in place but that does negate gross negligence i argued to under virginia law if you look at the cases it's not just wow all they had to do was look at this and he would have found out no that's negligence that's negligence in virginia that's not bro snake legen and then you have someone who's personally served with a pleading that says it says here warning to respond and so guess what contributory cripps contributory negligence is an absolute defense to gross negligence absolute bar and this personally served yes i might have read it i might not have yes i see this language and he did nothing did nothing so mr wentz mistake was being inexperienced not looking at the screen shot coming in and assuming everything had been checked which lawyers unfortunately do at times they're still responsible but it doesn't make them grossly negligent had mr head mr aruca called up and said i'm only the registered agent i am you going to do with this and mr wynn said no i'm i'm going forward you have to come in i'm not i'm going to do this i don't believe you know that might have been a different story but he never did that this is simple negligence under virginia law not gross negligence and he's entitle to sovereign immunity based on his position under mr universe's burton i think you know for the record from below my memorandum in support and the full transcripts really lay out everything that went down as this thing went towards the ultimate outcome so mr rue he could have done some things and mr whitney yes it shouldn't have happened but that's what sovereign immunity is there for and to the extent there's any fourth amendment clearly qualified immunity i don't have anything else to say i'd like to address a few points that came up in concert argument much was made about any reasonable person could see that the summons was directing mr hughes attendance in mr white and sworn in iraq a tory answers he cannot explain why review was identify why the asterisk was checked respondent same as defendant i submit that if an author of a document directing the arrest of someone cannot explain the document no reason notion that no reasonable person would think otherwise it's not supported by the record in any way nor by common sense mr whitten could not explain the document the summons or the k p as his sworn in iraq or tory answers appear at ninety eight to ninety nine of the appendix we have also not talked about the mon l issue here on the county's policy is conceded policy of conflating registered agent status with corporate debt liability qualified is the county attorney here and so mr blamer had been preparing tax collection documents and working in tax collection at the county since they started handling tax collection which was in two thousand and eight  prepared the documents at issue here and mr witness conceded that she always knew what she was doing she is the person and we heard misjudge can stalk about this she prepared all the pleadings if there is someone who can opine on what the county's policy with respect to preparing tax county itself yes and mr wynn in pursuing tax collection documents was acting on behalf tax collection proceedings was acting on behalf of the county enough you have to be able to show that the county would have been aware of this policy  witt knowing about it doesn't get you there mon el itself is very clear that it does not have to go to the relevant decision and policy does not have to go up through the formal challenges or be a formal written down i'm sorry the formal challenge  channels and doesn't have to be a written policy if it has a customer usage with the effect of law then it's a policy under mono or no also really clear that you have to have the ultimate decision maker and there's no evidence in this record about the ultimate decision maker about this policy mr whittington is the county attorney is the only person who is in a position to pursue tax collection on behalf of the county i'm sorry i am to be given the authority to do that by the county right that's correct and he has that authority he's the only person with that authority in this case that has authority over him that gave him that thirty right that has to be he county attorney's list you tell me that virginia position of county attorney says that he has the power to prosecute various various activities including collection activities on behalf of the county obviously the way that the forms are filled out in furtherance of those policies is something squarely within his control i wish i could point you to where in the briefs the statute is laid out but they are in there it isn't there  individualized suspicion prior to having someone arrested for dealing with the seizure here and the question is whether it was reasonable that's a squarely a fourth amendment issue this is not negligence this was not a mistake this is what the county did this is how they identified this is how they filled out tax collection documents and in this case as we see in the record he was identified as registered agent every single time mr whitman cannot explain why he identified why he filled out the ta election documents that way no reasonable person would have been on notice given the circumstances here this is a very specific set of facts i don't think it opens a floodgate nor does it run contrary to the line of cases that say valid court orders must be followed  i will also point out that gross negligence is relevant only to the availability of or non availability of sovereign immunity it's not a separate claim just wanted to make that clear we haven't played it as a separate claim here it very clear that not checking the records at all conceivably is grossly negligent and sovereign immunity wouldn't be available in any event  ok we will come down and greet the lawyer and we'll take a brief recess