Finding out about the case

Question 1

What must you serve the Defendant with?

Answer 1

Summons & Complaint

Note: In GDC a summons is called either a Warrant (if you use a civil warrant as a complaint) or a Notice of Motion for Judgement (if you use a motion for judgement as a complaint.)

In CC - it’s called a summons.

Question 2

Who can serve the summons and complaint?

Answer 2

Any adult civilian who is not a party to the case or by the sheriff or deputy.

An officer may serve in her city or county or contiguous localities (county city which is bordering or touching the county, city they are in)

Plaintiff pays officer a fee.

Question 3

Service on Individuals

Answer 3

Three ways to effect this. VA follows a descending order rule, meaning you can only move down the latter if one of the higher forms of service is impossible.

1) Personal (or actual) service: Deliver service directly to Defendant. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.

2) Substituted Service:
- Service at Defendant’s usual abode
- Served on a member of D’s family, at least 16 years of age. (CANNOT BE A GUEST)
- Must tell person the purpose of the documents.

3) Posted Service: If other two are unavailable, you can (1) post a copy of the process on D’s door and (2) at least 10 days before taking the default judgement, mail process to D and certify to clerk that mailing took place.
- In CC when Plaintiff mails the process to D they should also state that if D defaults, after 10 days from mailing, P can seek default judgement.

Question 4

Curing a Statute

Answer 4

Hypo: Actual service not possible, the process was left with D’s 10 year old son at D’s house. The child gives the documents to Dad.

Although technically not proper service , it is ok if Defendant actually and timely received it.

Note: Curing statute NEVER APPLIES in divorce and annulment cases.

Question 5

Can Plaintiff request by mail that Defendant waive formal process?

Answer 5

Yes.

Question 6

Immunity

Answer 6

If Defendant is in VA to be a witness in another civil case, is she immune to service of process for a VA civil case? No. But she would be in a federal civil case.

Question 7

Serving under long arm statute

Answer 7

1) Plaintiff must execute an affidavit stating that (a) Defendant is a non resident or cannot be found with due diligence and (b) Defendant’s last known address.
2) Plaintiff gives copy of the process and affidavit to the Secretary of the Commonwealth
3) Secretary sends out the process to D by certified mail.
4) Secretary sends certificate of mailing to the Court.

OR

Plaintiff can arrange for personal service outside of the state by someone authorized to serve process in that state.

Question 8

Service on a VA corporation and a Corporation qualified to do Business in VA

Answer 8

Serve (1) registered agent or (2) any officer or (3) director of corporation.

If registered agent cannot be found, then serve the clerk of the state corporation commission.

Question 9

Service on other foreign corporations

Answer 9

Any officer, director, or agent of the corporation found in VA. If none found, serve two copies of process and affidavit of corporations last known address on the clerk of the State Corporation Commission.

Question 10

Service under the Non-resident motorist act

Answer 10

Give affidavit of due diligence and D’s non residence. If affidavit is false, no jurisdiction.

Question 11

Service by Publication (Constructive Service)

Answer 11

Never available in personam. Only used in cases involving rights to property or status (ex parte divorce)

Only ok if Plaintiff gives an affidavit showing they have used due diligence to find Defendant but have not had success. If this is used, D has 50 days to respond to the complaint.

If the case is against a non resident. P can have a Sherriff in D’s county serve the D. If the sheriff serves then D has 21 days to respond .

Affidavits in support of publication notice, must state D’s last known address or the fact that the address is unknown.

Question 12

Proof of Service

Answer 12

Report to the court by the person who attempted service. They must state what they did to effectuate service and the reasons for failing to serve.

If service was made by an officer, it is prima facie evidence that what is stated is true.

If it is a civilian, it is merely evidence of service and not prima facie evidence.

Proof of service must be signed by the person making the service and state the jurisdiction where service was done.

Question 13

Timeliness of Service

Answer 13

P must have process served within one year of filing (unless they show due diligence).

The Court must hold a hearing and give P 30 days notice before dismissing on this ground.