FRCP: Service of Process Flashcards
What is service?
- ∆ is entitled to notice that she has been sued. Consists of
a. summons – present to the clerk for signature and seal.
b. copy of the complaint.
c. called process.
Who can serve procesS?
anyone at least 18 y/o
When must you serve?
? if ∆ is to be served in the US, must happen 90 days after filing
How is service done? on an individual in the US
on an individual in the us
i. personal service anywhere
ii. substituted service—process is left with the ∆’s butler at ∆’s summer home. OK if it’s
- ∆’s usual abode.
a. doesn’t have to be where ∆ is every day of the year.
b. common sense approach. - AND serve someone of suitable age and discretion who resides there.
a. doesn’t have to be related to the ∆.
iii. service on ∆’s agent—OK if receiving services is in the scope of agency, e.g. appointment by K - no preference, can use any of alternatives even if personal service is possible.
iv. state law methods—a method permitted by state law where the federal court sits or where service is made
1. for ex, states may allow service by mail
How is service done on a business or organization
i. on an officer, managing or general agent
ii. state law methods- where the federal court sits or where service is made
How is service done on a minor or incompetent
i. use any method permitted by state law.
ii. of the state where fed ct sits
How is service done in a foreign country
may use a method allowed by international agreement (for ex Hague).
if no agreement on point:
i. as directed by American court
ii. if reasonably calculated to give notice
1. method allowed by foreign country’s law
2. method directed by foreign official in response to a letter of request
3. personal service (unless prohibited by its law)
4. mail sent by the US court clerk, requiring signed receipt
What is waiver of formal service?
a. mail to a ∆ a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form. if ∆ executes and mails back within 30 days, D waives formal service
i. this is not a waiver of defense, like lack of PJ
b. then the π must file waiver in court and it is effective then.
c. if ∆ fails to return the waiver form. π then has ∆ served personal. if ∆ didn’t have good cause for failing to return the waiver form, the ∆ has to pay the cost of the service.
Proving service
:unless service is waived, the person who served process files a report with the court detailing how service was made. if service was a civilian, this report is by affidavit.
a. IF process server fails to file, doesn’t affect validity of service.
Geographic reach of service
may be served within the state where fed ct sits. may be served outside that sate if state law allows.
Immunity of service
D is present in state X to appear as a party, witness or attorney in different case in state x. D cannot be served with process because immune
Service of other documents
for ex answer pleading, motions. doesn’t have to do so formally. can deliver or mail to party attorney
a. can it be done by email if the party agrees
b. service is complete when MAILED, but you do get extra time because the docs were mailed
