Jurisdiction and Venue - Service of Process and Notice Flashcards
Under Federal Rule of Civil Procedure 4(h), service upon a corporation may be effected within a United States judicial district by
“following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located”
OR
state laws where service is made
OR
“by delivering a copy of the summons and of the complaint to an officer, a managing or general agent.”
For purposes of serving a corporation, can you serve a CEO?
YES, because such an official would be “‘so integrated with the corporation sued as to make it a priori supposable that he will realize his responsibilities and know what he should do with any legal papers served on him.’”
this method of service (personal delivery of the summons and complaint to the CEO) was reasonably calculated to provide the company with actual notice of the case and therefore satisfies constitutional requirements.
Just looking for it to be fair, but here are some buzzwords and/or langugage to use in that assessment.
Service Req’s.
A civil action is commenced by filing a complaint with the court.
After the plaintiff files a complaint, a summons MUST be served on the defendant with a copy of the complaint.
The plaintiff is responsible for having the summons and complaint served within 90 days after the complaint is filed with the court.
Who may serve summons and complaint?
Any person who is at least 18 years old and NOT a party to the action may serve a summons and complaint.
An individual within a judicial district of the United States may be served by:
Delivering a copy of the summons and complaint to the individual personally;
Leaving a copy of each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there;
OR
Delivering a copy of each to an agent authorized by appointment or by law to receive a service of process.
Note: A state statute authorizing service on a state official is considered to be constitutionally sufficient if defendant is also mailed a copy of the summons and complaint.
NOTE; doesn’t explicitly say it, but ALL OF THESE REQUIRE IN-PERSON DELIVERY. “DELIVERING A COPY…MEANS, HAND-DELIVERING…”
Unless prohibited by the foreign country’s law, an individual in a foreign country may be served by:
Delivering a copy of the summons and complaint to the individual personally;
Using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt;
OR
Other means not prohibited by international agreement, as the court orders.
A corporation, partnership, or association may be served by
delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.
When is service by MAIL to a corporate or individual D okay?
a plaintiff can send “by first- class mail or other reliable means” notice to the corporation of the commencement of the suit and request that the defendant “waive service of a summons.” Must also include name of court, copy of complaint, two copies of waiver form, prepaid means for returning form, consequences of not waiving, dat ewhen request sent, and must tive reasonable time of at least 30 days to return the waiver (but P not required to give more than 30 days, just needs to be at least 30)
requirements are strict
Waiver of service becomes effective only after defendant signs and returns the waiver form and the signed waiver form is filed
if the defendant fails to comply and did not have “good cause” for refusing, the defendant must pay “the expenses later incurred in making service.”
FRCP 4(e) Serving an INDIVIDUAL Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located
OR
(2) following state law where service is made;
OR
(3) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
THIS RULE HOLDS FAST WHETHER DIVERSITY JX BASED ON STATE CLAIM OR FQ DIVERSITY
ALSO NOTE: IF PROPER UNDER STATE LAW, EVEN THOUGH STATE LAW IS MORE LENIENT ON SERVICE, THAT IS OKAY…JUST HAS TO SATISFY ONE OF THESE THREE.
SERVING CORPORATIONS IN THE U.S.
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located
OR
(2) following state law where service is made;
OR
(3) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant
100-MILE BULGE RULE FOR 3PD’S
Can serve 3P D’s within 100-mile radius of court where action is filed, even if D does not have minimum contacts with state
when an individual is being served, even if the individual operates a business, he or she cannot be served by
leaving the papers with a third person found at the individual’s usual place of business (at least assuming that there is no special provision of state law that allows this).
What date is used as the service date if D returns waiver to P by mail?
the date the P FILES the waiver with the court. this is when service is deemed complete.
If waived service by mail, how long does D have to file answer?
60 days FROM THE DAY P SENDS WAIVER REQUEST
(for normal service, must answer within 21 days)
