Notice

Question 1

Rule 4(c): Who can serve a complaint and summons?

Answer 1

• Must be at least 18 years old
• Cannot be a party in the lawsuit
• Can be a marshal or specially appointed person

Question 2

Rule 4(a): What must the summons include?

Answer 2

A. Name of court
B. Name of parties
C. Directed to the defendant
D. Name and address of the plaintiff or the plaintiff’s attorney
E. Time at which the defendant must appear and defend
F. Notice that failure to appear will result in in absentia judgment against the defendant
G. Signed by a clerk
H. Bear the court’s seal

Question 3

Rule 4(b): How is a summons issued?

Answer 3

1. File the complaint
2. Present the complaint to the court
3. Clerk signs, seals and issues the summons to the plaintiff to be served to the defendant

Question 4

Rule 4(e): How can you serve individuals inside the US?

Answer 4

• Deliver to the defendant personally
• Leave a copy at the defendant’s residence with someone of suitable age and discretion who also resides there
• Deliver a copy to an authorized agent
• Follow state law in forum state or state in which the defendant is served

Question 5

Rule 4(f): How can you serve individuals outside the US?

Answer 5

• “Internationally agreed means of service reasonably calculated to give notice” or method reasonably calculated following the foreign authority’s rules
• Deliver to the defendant personally
• Send by verified mail

Question 6

Rule 4(h): How can you serve corporations inside the US?

Answer 6

• Operate as per 4(e)(1)
• Deliver to an office or managing agent personally
• Mail to defendant

Question 7

Rule (4)(h): How can you serve corporations outside the US?

Answer 7

Operate as per 4(f) except no personal service

Question 8

Rule 4(g): How can you serve a minor or an incompetent?

Answer 8

Follow state law or foreign authority’s law

Question 9

Rule 4(d)(1): Waiver of Service

Answer 9

• Defendant can waive formal service
• Defendant has 30 days (inside US) or 60 days (outside US) after request was sent to return the waiver

Question 10

Rule 4(d)(2) and (3): Failure to Waive

Answer 10

• Defendant incurs expenses of service
• If defendant waives they have 60 days (inside US) and 90 days (outside US) to answer
• Failure to waive is not grounds for default judgment

Question 11

Rule 4(m): Time Limit for Service

Answer 11

Action dismissed without prejudice unless there is good cause if the defendant is not served within 90 days of the complaint being filed

Question 12

Mullane v. Central Hanover Bank

Answer 12

• This case established the notice requirement that the type of notice given must be “reasonably calculated under all of the circumstances”.
• Notice requirement:
• Defendants whose interests or addresses cannot be determined: indirect publication is appropriate
• Defendants whose interests or addresses can only be determined through extensive searches: if the search is unreasonably impractical and/or extensive, indirect publication is appropriate
• Defendants whose interests or address are known: notice by mail is required.

Question 13

Jones v. Flowers

Answer 13

If a mailed notice is returned unclaimed, the State must take additional, reasonable steps to serve the defendant. This includes: resending by regular mail, posting a notice on the front door. The State is not required to search for a new address.

Question 14

Covey v. Town of Somers

Answer 14

Serving an incompetent without the supervision of a guardian violates the Due Process clause.

Question 15

Greene v. Lindsey

Answer 15

Posting a notice on a defendant’s door may technically satisfy Due Process unless it is known the defendant would not see it.

Question 16

How to satisfy notice?

Answer 16

• Must satisfy Mullane and Rule 4.
• Mullane sets the outer bounds of what is constitutionally allowable; Rule 4 provides details about how to serve.
• Rule 4 only applies to federal courts.