Jurisdiction Over the Particular Case: Service

Question 1

In addition to subject matter jurisdiction, what are the three requirements for the court to have jurisdiction over the case?

Answer 1

1. Proper commencement of the action
2. Proper service of process on D.
3. Proper basis of jurisdiction over the person/property involved (PJ).

Question 2

When is an action properly commenced?

Answer 2

By filing process with the clerk of the court, paying the filing fees (purchasing an index #).

This must be followed by service on all defendants within 120 days of the filing.

Question 3

What happens if P doesn’t properly serve D’s within the 120 day period?

Answer 3

Either the case will be dismissed for lack of PJ, or the court, in its discretion, can decide to allow P to correct the mistake (if D suffers no prejudice and P had filed within the S/L).

Question 4

What is the proper form of process?

Answer 4

Either Summons and Complaint or Summons and Notice

Question 5

What must a plaintiff include in a summons and complaint?

Answer 5

P must specify subject matter jurisdiction and spell out the essential elements of his cause of action.

Question 6

What must a plaintiff include in a summons and notice?

Answer 6

P must attach a brief statement of the nature of the action, the type of relief being sought, and any damages sought (unless personal injury or wrongful death, where you can’t specify the amount of damages).

Question 7

Can plaintiff serve a summons by itself?

Answer 7

No - that is not process and it’s a jurisdictional defect.

Question 8

Who can serve process in NY?

Answer 8

Any non-party over age 18.

Question 9

When can process be served?

Answer 9

Any day of the week except Sundays.
You can serve on holidays.
If you know defendant observes the Sabbath, you cannot serve on a Saturday.

Question 10

Must P ensure that D is actually served?

Answer 10

No - P need only comply with the formalities of service.

Question 11

What are the follow up requirements for personal delivery to defendant?

Answer 11

None - once personal service is made on the defendant himself - service is complete.

Question 12

Describe the requirements for the leave and mail method.

Answer 12

A process server can deliver process to a person of suitable age and discretion at defendant’s actual dwelling or place of business.

If not delivered directly to the defendant, the server must also mail a copy by regular mail to D at either D’s actual place of business or D’s last known residence.

These two steps must take place within 20 days of each other and within 120 days of the filing. Proof of service must also be filed.

Question 13

Describe the requirements for the affix and mail method.

Answer 13

A process server who has tried with due diligence to serve D directly or by leave and mail - can affix a copy of process to the door of D’s actual place of business or actual dwelling place.

D must also mail a copy by regular mail to D’s actual place of business or last known residence.

These two steps must take place within 20 days of each other and within 120 days of the filing. Proof of service and attempts to serve personally or by leave and mail must also be filed.

Question 14

When does defendant’s response time begin to run?

Answer 14

When service is complete.

Question 15

When is service complete in the leave and mail and affix and mail service types?

Answer 15

10 days after proof of service is filed.

Question 16

What if P’s process server fails to file proof of service?

Answer 16

It is not a jurisdictional defect, but it does give defendant a longer time to respond.

Question 17

Describe “Court Invented Service”.

Answer 17

if regular service is not practicable, P can ask the court in an ex parte motion to allow a non-traditional form of service that is a reasonable alternative. P cannot use a reasonable alternative without first getting a court order.

Question 18

How can P serve D if D is an infant?

Answer 18

Process must be served on:

1. A parent of the infant, or
2. A guardian of the infant, or
3. Any person with legal custody of the infant, or
4. If the infant is 14 or older, process must be served on both the infant and an eligible adult.
5. If the infant is married to an adult and lives with them, service on the adult spouse.

Question 19

How can P serve D if D is mentally incapacitated?

Answer 19

By serving D and D’s guardian, or if D has not been appointed a guardian - through traditional methods of service on D alone.

Question 20

What are the rules for serving process on D in a state other than NY?

Answer 20

The same except who can be a process server is more flexible: (i) any non-party NY resident over 18, (ii) anyone authorized to serve process in the state where service is made, (iii) any attorney licensed in the state where service is made.

Question 21

What are the two methods of serving process on a corporation?

Answer 21

1. Personal delivery on officers, directors, agents, or managing agents
2. Service on the NY Sec’y of State

Question 22

Must a corporation be served in NY if served properly?

Answer 22

No - corporations with proper connection to NY can be served anywhere.

Question 23

If serving a domestic or foreign corp authorized to do business in NY through the NY Sec’y of State, what are the formal requirements?

Answer 23

Personally deliver 2 copies to the NY Sec’y of State’s office and mail one copy by certified mail to the address on file. Service is complete on delivery of process to the NY SOS’s office.

Question 24

If serving an unlicensed foreign corp through the NY Sec’y of State, what are the formal requirements?

Answer 24

Personally deliver 1 copy to the NY SOS’s office and mail a copy to the corporation by certified mail (return receipt requested).

Question 25

What is the Mail and Acknowledgement method of service?

Answer 25

P mails process to D by first class mail, and enclose two copies of a statutory acknowledgement form with a return envelope (postage prepaid, addressed to sender).

Question 26

What happens if D does not return the acknowledgement form within 30 days (in the non-traditional service method)?

Answer 26

P will have to serve by a traditional method, but D will pay for P’s second service attempt.

Question 27

If D signs and returns the acknowledgment form within 30 days, when is service complete?

Answer 27

The moment D mails the completed form.

Question 28

When is the mail and acknowledgment method of service not allowed?

Answer 28

When serving infants of mentally incapacitated persons.

Question 29

Will D concede personal jurisdiction by mailing back the acknowledgment form?

Answer 29

No - this is just an acknowledgement of service and a waiver of traditional service. It is not a pleading, where D would have to raise PJ or waive it.