Notice and Service of Process Flashcards
What is the general concept of notice, also called service of process?
In addition to PJ, the D is entitled to notice that she has been sued.
What is the constitutional requirement for service of process?
Notice must be “reasonably calculated, under all the circumstances, to appraise interested parties of the action.”
What two documents does notice (service of process) entail? What steps does the P follow?
Notice consists of two documents:
1. A summons, which is formal court notice of suit and the timing for response; and
2. A copy of the complaint.
Together, called “process.”
The P (1) fills out a form summons for the clerk of the court to sign, seal, and issue, then (2) the P has process served in accordance with the Federal Rules.
Who can serve process?
Any person who is at least 18 years old and not a party to the action.
The process server need not be appointed by the court. (Some state courts require appointment by the court.)
When must process be served?
90 days. If the defendant is to be served within the United States, service must take place within 90 days of the filing of the complaint. This period may be extended for good cause.
How is process served on an individual within the United States?
(A) Personal Service: Process is given to the D personally ANYWHERE.
(B) Substituted Service: Serve a substitute for the D. Can be done ONLY (1) at the D’s usual place of abode (common sense determination = doesn’t have to be every day); (2) to someone of suitable age and discretion and (3) who resides there. (In federal court, can be used even if personal service is possible).
(C) Service on Agent: This is OK if receiving service is in scope of agency, for example, when the agent is appointed by contract. (Agent service can be used even if personal service is possible.)
(D) State law Methods: laws of the state (1) where the federal court sits that the complaint was filed in, or (2) where service is made. (Ex: some states allow service of process by mail).
How is process served on a Business or Organization within the United States?
- Delivering to an officer (C-suite, or president, treasurer) or a managing or general agent a copy of the summons and of the complaint, or
- Using a method permitted by the state (1) where the federal court sits or (2) where service is to be made.
How is process served on a minor or incompetant person within the United States?
ONLY by a method permitted by the law of the state in which service is to be made.
How is process served on parties in a foreign country?
A method allowed by international agreement (for example, the Hague Convention) may be used. Or, if there’s no such agreement on point, the options (subject to the constitutional requirement that the method must be reasonably calculated to give notice) are:
- (1) As directed by the American court; or
- (2) Method allowed by the foreign country’s law; or
- (3) Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
- (4) Personal service in the foreign country (unless prohibited by its law); or
- (5) Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).
What are the steps for Waiver of Service of Process?
- A D (ind. or entity) can waive service of process.
- To request this waiver, the P mails the D: (1) a notice, (2) request to waive service, (3) a copy of the complaint, (4) two copies of a waiver form, and (5) a prepaid means of returning the form.
- If the defendant executes and mails the waiver form to the plaintiff within 30 days (60 days if the defendant is outside the U.S.), she waives service of process.
Does waiver of process effect other defenses?
No. A D who waives service of process does not waive any defenses like lack of PJ.
When is the waiver of process effective?
When the P files the completed waiver form it received from the D.
That means that for timing purposes, we act as though the D was served with process on the day that the P filed the waiver form with the court.
What is the Penalty for Failing to Waive Service?
If the D did not have good cause for failing to return the waiver form, the D must pay the costs of service.
How does a P prove that they have properly served the D?
- Unless service is waived, the process server files a report with the court detailing how service was made.
- If the server was a civilian, the report is by affidavit (sworn statement, under oath).
- The failure to file this report does not affect the validity of service.
GEOGRAPHIC REACH OF SERVICE OF PROCESS
Process may be served within the state in which the federal court sits.
It may be served outside that state if state law allows. (long arm) That is why whether we have PJ is the same for federal court as it is for state
court.
