Notice Flashcards
Constitutional Notice Requirement
Due process clause of 5th and 14th amendments
Found in rule 4 of the fed rules of civ pro
***proper notice of the action must be given to the party before a cats exercise of jdx will be effective
statutory notice: service of process
documents cannot actually be served by a party in the case
(summons + complaint = the process)
FRCP 4E (serving individuals)
- unless fed law provides otherwise, an individual other than a minor or incompetent person, or a person whose waiver has been filed, may be served in a judicial district by:
1. following state law for serving a summons in an action brought in arts of general jdx in the state where the district cut is located or where service is made or
2. doing any of the following
a. delivering a copy of summons and complaint to individual personally
b. leaving a copy at each of individuals dwellings 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
FRCP 4H1 (serving entities)
Serving a corporation, partnership, or association. Unless fed law provides otherwise or ds waiver has been filed, a domestic or foreign corp or a partnership or other unincorporated association that is subject to suit under a common name must be served
1. in a judicial district in the us
a. in the manner prescribed by rule 4e1 for serving an individuals or
b. 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 by statute and the statute so requires - by also mailing a copy of each to the d
service outside the US (still in FRCP 4h1)
service can be made pursuant to the terms of an international treaty which established a detailed regime for transmitting such docs to persons found with in foreign countries
if no treaty app.
- in a manner d are ordinarily served with those countries for suits in their regional crts
- as directed by that country in response to a letter reogatory from the us crt requesting instruction on service for individual d
- through in hand service of process or by any form of mail that the clerk addresses and send to the individuals and the requires a signed receipt provided the foreign country does not prohibit such service
by other means not prohibited by international agreement as the court orders
FRCP 4D (waiver of service)
- an individual corporation or association that is subject to service under rule e f or h has a duty to avoid unnecessary expenses or serving the summons. The p may notify such a d that an action has been commenced and request that the d waive service of summons the notice and request must
a. be in writing and be addressed to the individual d or an officer/agent
b. name the cat where the complaint was filed
c. be accompanied by a copy of the complaint 2 copies of the waiver form and a prepaid means for returning the form
d. inform the d of the consequences of waiving and not waiving service
e. state the date when the request was sent
f.give the d a reasonable time of at least 30 days to return the waiver and
g. be sent by first class mail or other reliable means - failure to waiver. If a d located within the us fails without good cause to sign and return the waiver a crt must impose on the d
a. the expenses later incurred in making service and
b the reasonable expenses including attorneys fees of any motion required to collect - time to answer after a waiver - a d who times returns a waiver need not serve an answer to the complaint until 60 days after the request was sent
FRCP 4M (time limit for service)
if a d is not served within 90 days after the complaint if filed the crt - on a motion or on its own after notice to the p - must dismiss the action without prejudice against that d or order that service by made within a specified time but if the p shows good cause for the failure the crt may extend the time for the service for an appropriate period
