concurring in part and dissenting in part:
I concur in Part I of Judge Fairchild’s opinion, which holds that Wakefield Industries was properly served and that the District Court thus had jurisdiction to issue the injunction allegedly violated by Margolis. I do not agree with Part II of the opinion, which holds that service of the contempt motion on Margolis by mail was ineffective.
I would follow the rule established in SEC v. VTR, Inc., 410 F.Supp. 1309 (D.D.C. 1975). In that case, Judge Gasch approved service by mail of a contempt motion on a nonparty president of a corporate defendant where the corporate officer had actual notice of the contempt proceeding. I think the VTR case cannot be distinguished on the ground that Margolis’ actual knowledge of the contempt proceeding is less clear than that of the corporate president in the VTR case. Margolis does not deny that he received actual notice of the contempt proceeding against him, and thus has not rebutted the presumption that a letter deposited in the mails reaches the addressee, see Fed.R.Civ.P. 5(b). Nor can the VTR decision be distinguished on the ground that the president of VTR, Inc. had actively participated in defense of the suit against his corporation. Distinguishing the VTR ease on this ground rewards Margolis for his disregard of the District Court’s processes.
Rule 5(b) of the Federal Rules of Civil Procedure also supports a rule permitting service by mail under the circumstances presented here. Rule 5(b) authorizes service by mail on the attorney of a party. As the majority notes (ante at 1261-1262), this rule permits service of contempt motions by mail. An apparent rationale for permitting such service is that it saves needless expense and inconvenience: when a party has appeared by attorney, there is ample reason to presume that the party will receive documents mailed to his lawyer. This policy applies with equal force here. Although Margolis had not appeared personally in the action, his presence at the New York address had been verified by serving him there on two prior occasions, the latter of which came only some two *111weeks before the contempt motion was mailed. There was thus no reason to believe that mailing the contempt motion to this address would be inadequate to notify him of the contempt proceeding.
NLRB v. Hopwood Retinning Co., 104 F.2d 302 (2d Cir.1939) (per Clark, J., with L. Hand and A. Hand, JJ.), indicates that the policies of Rule 5 support mailing a contempt motion to a nonparty officer of a corporate defendant. In the Hopwood Re-tinning case, the NLRB sought to have two commonly-controlled corporations and certain corporate officers held in contempt for failure to comply with an earlier decision of the Court of Appeals. In the earlier decision, the Second Circuit had ordered the corporations to reinstate certain employees and to give them back pay. The corporate officers were not parties in the earlier action, but were apparently named as respondents in the contempt proceeding. Service of process in the contempt proceeding was mailed under Rule 5(b) to the attorneys who appeared on behalf of the two corporations in the earlier action; process was not served personally on the corporate officers. The Court of Appeals held service by mail sufficient to subject the corporate officers to a contempt order:
As a proceeding for civil contempt, this is therefore properly a continuance of the earlier action in this court and is a step in the enforcement of our previous judgment. Hence it was correctly instituted by motion served upon the counsel appearing for the parties in the record.
Id. at 305. The Hopwood Retinning case is factually different from the present case in that notice was mailed to Margolis rather than to counsel appearing on behalf of his corporation. This difference, however, is not significant. In both cases, a contempt proceeding was initiated against a nonparty officer of a corporate defendant, without personal service on the officer.
Neither Rule 4 nor Rule 5 of the Federal Rules of Civil Procedure requires that a contempt motion be personally served on a nonparty officer of a corporate defendant. Neither does due process require personal service, since service by mail on the facts here was “reasonably certain to inform” Margolis of the contempt proceeding, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and since Margolis had actual notice of the proceeding, Restatement (Second), Judgments, § 2(l)(b) (1977). Thus, the only reason advanced by the majority for requiring personal service is that it “seems to be a sound requirement of good practice.” Ante at 1261. In my view, good practice does not require personal service of a contempt motion in the circumstances presented here. The complaint and default order were personally served on Margolis as president, and, as the majority suggests (ante at 1261), he was bound by the District Court’s injunction under Fed.R. Civ.P. 65. Service by mail to the New York address was highly likely to reach Margolis, arid we should presume from the fact of mailing that notice in fact did reach him. Under these circumstances, I fail to see how service by mail has resulted in any unfairness to Margolis, or how personal service would have been a more sound practice.
I would hold that mailing a contempt motion to a nonparty officer of a corporate defendant is sufficient where the officer has actual knowledge of the action from which the contempt motion arises and actual notice of the contempt proceeding.