4. Service of Process (Due Process Clause 14A)

Question 1

What determines commencement of action by service of complaint with the court?

Answer 1

Statute of limitations

State’s statute

Question 2

Who is required for service of process on defendant? By when?

Answer 2

1) Non-party files service
2) At least 18 years old
3) Within 90 days after complaint served with court

Question 3

How may service of process be made upon individuals?

Answer 3

Authorised by federal law

• Personal service on D (hand delivery)
• Service on Defendant’s usual abode + recipient (suitable age + discretion)
• Authorised agent

Authorised by state law

• Method allowed by state where federal action is pending
• Method allowed by state where service is made

Question 4

How may service of process be waived by defendant?

Answer 4

1) Plaintiff serves by first class mail
2) Waiver form x2 copies
3) Complaint x1 copy
4) Plaintiff’s formal request to waive service

5) Defendant must sign + return waiver form
- Within 30 days after receiving notice (in US)
- Within 60 days after receiving notice (outside US)

Question 5

How may service of process be made upon corporations/partnerships/associations?

Answer 5

Authorised by federal law

• Personal service on (general/managing) agent (hand delivery)
• Personal service on officer (hand delivery)

Authorised by state law

• Method allowed by state where federal action is pending
• Method allowed by state where service is made

Question 6

How may service of process be made upon TP (impleader)?

Answer 6

1) TP is domiciled within 100 miles of state where federal action is pending
2) Personal service on TP

=> PJ formed

Question 7

How may service of process be made upon foreign parties?

Answer 7

• International agreement
• Foreign law
• Official’s direction
• Personal service
• Mail

Question 8

What are the consequences of Defendant waiving/not waiving service of process?

Answer 8

D’s waiver

1) D waives within 30 days after P’s request => Service of process is waived (service of process NOT deemed)
2) P files waiver request with court => Service of process is deemed

D’s no waiver

1) D does NOT waive (service of process NOT deemed)
2) P must file service of process => Service of process is deemed
3) D must pay P’s service costs (unless D had good cause for no waiver)