Civ Pro - Pleadings

Question 1

How is a civil action commenced?

Answer 1

Filing a complaint with the court clerk.

In a diversity action, state law will determine when the action commenced for purposes of the statute of limitations.

e.g. if the case is a diversity action and state law says that the action starts on day of service to D for the purposes of SOL, then the state law controls.

Question 2

Give the Rules for how to calculate the time periods in days for the FRCP?

Answer 2

Under Rule 6(a)(1), whenever a time period is stated in days, the period excludes the day of the event that triggers the period, but it includes every day following, including intervening Saturdays, Sundays, and legal holidays.

If the last day of the period is a Saturday, Sunday, or legal holiday, then the period is extended to include the next non-weekend or non-holiday day. Rule 6(a)(1).

Question 3

When must a written motion and notice of a hearing be served?

Answer 3

At least 14 days prior to hearing

Unless:

(i) the motion can be heard ex parte
(ii) the Rules provide for it; or
(iii) the Court orders otherwise

Question 4

When must an opposing affidavit to a hearing be served?

Answer 4

At least 7 days before the hearing unless otherwise ordered

Question 5

Additional “time frame by mail” rule

Answer 5

3 days!

If a party is served pursuant to Rule 5(b), which is by mail, leaving with the clerk, or other consented means, 3 days are added to the prescribed time period.

This covers rules after the original complaint is filed.

Question 6

Notwithstanding a waiver of service, what is the consequence of a party not being served?

Answer 6

A court may not exercise power over the defendant named in the complaint

Question 7

Who is responsible for serving the summons and complaint?

Answer 7

Plaintiff

The actual service may be made by a nonparty who is at least 18-years old.

-watch out for weird situations were the court doesn’t want the plaintiff making the service himself

Question 8

When must the plaintiff serve the complaint and summons?

Answer 8

General Rule: Within 90 days after filing the complaint with the court.

Unless:

(i) P makes showing of “good cause” why service was not timely made, then court must extend time for service to an appropriate period. If no showing, then court must dismiss on action based on its own or on a motion.
(ii) D is outside US. Then follow foreign law or international agreement.

Question 9

4 ways to effect service on an individual in the U.S.

Answer 9

1. Personally serving the summons and complaint on the D
2. Leaving the summons and complaint at the D’s usual place of abode with a person of a suitable age and discretion who resides there
3. Delivering the summons and complaint to an agent appointed by the D or otherwise authorized by law to receive service
4. Service made pursuant to state law in an action brought of general jurisdiction in the state where the district court is located or where service is made.

Question 10

How to serve a D when the D is outside the U.S.?

Answer 10

• In any manner, internationally agreed upon, that is reasonably calculated to give notice

Question 11

Give the ways to effect service on a corporation or unincorporated association (e.g., partnership) in the U.S.

Answer 11

Delivering the summons and complaint to either:

(i) Officer
(ii) Managing Agent
(iii) General Agent
(iv) Agent appointed or authorized by law to receive process

Question 12

Give the ways that service may be effected on a corporation or unincorporated association outside the U.S.?

Answer 12

By any method avaiable to serve individuals outside the US

Question 13

What are the 3 requirements to serve the United States?

Answer 13

(i) Deliver a copy of the summons and complaint to the U.S. attorney for the district where the action in brought or send a copy by registered mail/certified mail to the civil-process clerk at the U.S. attorney’s office
(ii) Send a copy by registered or certified mail to the U.S. Attorney General
(iii) If the action challenges an order of a nonparty agency or officer of the United States, send a copy by registered or certified mail to the agency or officer.

Question 14

How to serve a U.S. agency, officer, or employee in their official capacity?

Answer 14

(i) Serve the United States (which means serve the US attorney in the district and serve the US Attorney General)
(ii) Send a copy of the summons and complaint by registered/certified mail to the agency, officer, or employee

Question 15

How to serve a U.S. Officer or employee as an individual?

Answer 15

(i) Serve the US
(ii) Serve the individual

Question 16

Waiver of Service Rule

Answer 16

A competent individual, corporation, or association that is subject to service has a duty to avoid unnecessary expenses of serving the summons by waiving service.

EXCEPTION: If D is a government, minor, or incompetent then waiver of service is not available.

Question 17

What are the requirements for the request of a waiver of service of process?

Answer 17

(i) Properly addressed to individual defendant or a corporation’s officer/agent
(ii) Includes the copy of the complaint
(iii) Includes the 2 waivers
(iv) Prepaid means of returning the signed waiver

Question 18

How long does a D have to return a request for waiver of service of process?

Answer 18

Reasonable time of at least 30 days (if in the US) or 60 days if foreign defendant

Question 19

What is the legal effect when the D timely returns a signed waiver of service form prior to being served?

Answer 19

The D may serve the answer any time prior to 60 days after the request for waiver was sent

or

90 days if the D is outside the U.S.

(This is an incentive to waiver service. Normal time to respond and provide an answer is 21 days after service of process).

Question 20

Does waiver of service of process waive objection to PJ or to venue?

Answer 20

No

Question 21

Consequence of failure to waive service without good cause

Answer 21

D must pay expenses that are incurred in making service and the reasonable expenses including attorney’s fees

Question 22

Proof of Service

Answer 22

If formal service is not waived, then the process server must submit proof of service to the court.

Process server will need to make an affidavit

Failure to make proof of service does not effect validity of service