Civ Pro - Service/Motions

Question 1

What must the D be served with?

Answer 1

1. summons - formal notice of suit. Signed by court clerk, tells them where/when to appear
2. copy of the complaint

Question 2

When must D be served?

Answer 2

Within 90 days of filing the case

If does not, then case dismissed without prejudice

Can be waived with a showing of good cause for the delay

Question 3

When is D immune from service of process?

Answer 3

When in a state solely as a witness or party in another civil case

Question 4

Acceptable methods of service

Answer 4

1. personal service
2. leaving it at the D’s dwelling or usual abode with a person of SAD (suitable age and discretion) - youngest courts have recognized is 12
3. for corps - with D’s agent as long as service is within scope of agency
4. any other method permitted under state law (where court located or service made)
5. waiver by mail

Question 5

Waiving service of process

Answer 5

P may request D waive service my mailing D the complaint and a waiver

If D agrees, it extends D’s time to respond to 60 days (instead of 21)

waiving service doesn’t waive right to object to VIP

Question 6

Subpoenas can compel a person to attend a hearing, disposition, or trial as follows:

Answer 6

1. within the state the person lives or works - for party of the case this is any subpoena. for non-party then only trial subpoena and only if wouldn’t incur substantial expenses
2. outside of the state but within 100 miles where they live, work, regularly do business

Question 7

Timing for D’s “answer” (response) to service of process

Answer 7

21 days

*60 if waiver, 90 if out of country

**failure of the above results in default judgment

Question 8

Difference between motion for summary judgment and motion to dismiss?

Answer 8

Motion to Dismiss - failure to state a claim. court looks at face of pleading. Motion to dismiss must be made by D before answer.

Motion for Summary Judgment - court examines sufficiency of the evidence underlying the pleading and whether there is a genuine issue of material fact warranting a trial. can be made by either party at any time (if made during trial its a motion for judgment as a matter of law)

Question 9

Motion to Dismiss Rule 12(b)(6) - Grounds to dismiss:

Answer 9

Waived if not included in answer: VIP (venue, insufficient process, lack or personal jurisdiction)

other grounds - lack of SMJ (never waived). defenses that are “built in to complaint”, failure to join a necessary party

Question 10

Motion for Summary Judgment - latest is can be made

Answer 10

30 days after “bar date” - which is the close of pretrial discovery