Notice-- Part II of Pretrial Procedures Flashcards
Notice
A defendant must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard.
WHATis Notice?
Service of Process means to provide a D with a NOTICE of pending action by delivery to D of 3 THINGS:
1) a Summons,
2) a Copy of the Complaint, AND
3) Civil Case Cover sheet.
WHEN does Notice need to be served?
Timing of Notice: Service must be made WITHIN 90 DAYS AFTER the complaint is filed.
Who can serve Notice? (Method of Service)
Service must be made by a non-party who is at least 18 years old.
How can Notice be served? (Types of service)
SPASM; State auth. = following state law for service in state where dist ct is located or serv is made. Personal service: personal delivery. Agent = serving D’s auth. agent. Sub service: left at D’s usual place of abode with some1 of suitable age and discretion (14 y.o) who resides there. Mailed waiver: if D agrees to waive serv – D gets 60 days to respond.
What is Personal Service?
An adequate type of service and occurs when the notice is personally delivered to a defendant.
When is Substituted Service adequate?
Service of process can be
1) left at the defendant’s usual place of abode and
2) served upon someone of suitable age and discretion
3) who resides there; OR
4) served to defendant authorized agent (agent for service of process); OR
5) served by method permitted by state law.
When is Substituted Service permitted by state law.
Per State Law: Serve summons per state law applicable in state Federal Court sits or in the state where service is effectuated.
When can Defendant Waive personal Service (Waiver of Service)
If a D agrees to waive personal service, then D gets 60 days to respond to the complaint.
Type of service on Parties outside of State
Following state law for serving summons in the state where the district court is located of where service is made.
Service on Foreign Defendants
Service can be done as the court directs, or in accordance with the laws of the foreign jdx, or in accordance with the rules of an international treaties.
Who has Immunity from Service of Process?
Individuals who enter a state to appear in another action are immune from service of process. Additionally, if a party was introduced by fraud or deceit, the service is invalid and the court does not acquire PJ.
Response–Rule 12 requirements
Rule 12 requires a defendant to respond WITHIN 21 days AFTER SERVICE of process (or WITHIN 60 days IF SERVICE IS WAIVED) by either a
1) MOTION OR
2) ANSWER
The Defendant can RESPOND BY
The Defendant can RESPOND BY:
1) Do nothing
2) Answer
3) Motion to Dismiss
The Defendant can RESPOND BY:
1) Do nothing
When a D does nothing in response to Notice, it results in a default judgement in P’s favor.
The Defendant can RESPOND BY:
2) Answer
An answer is the D’s response to the complaint.
1) The D must respond to allegations
2) the D must assert any affirmative defenses
3) D may raise inconsistancy
4) Counterclaim
5) Crossclaim
The Defendant can RESPOND to allegations in an Answer by
The defendant must respond to the allegations by:
1) denying them,
2) admitting them, OR
3) stating he lacks sufficient information to do either
FAILURE TO DENY can operate as an admission!!
The Defendant must RESPOND in an Answer by asserting
The D must assert any AFFIRMATIVE DEFENSES in the Answer.
The Defendant RESPONDs in an Answer by raising
D may raise Inconsistent and multiple Objections and Defenses in the answer so long each is raised in GOOD FAITH
The Defendant is permitted to RESPOND in an Answer by alleging against the P a…
A counterclaim permits D to allege a claim against P as part of the Response.
The Defendant is permitted to RESPOND in an Answer by alleging against another D
A crossclaim permits D to allege a claim against another D as part of the Response.
Move to Dismiss
Move to Dismiss is a formal request (on various grounds) for court order of dismissal.
Grounds for Motion to Dismiss
A D may Move to Dismiss for:
1) Lack of SM
2) Lack of PJ
3) Improper Venue
4) Insufficient process
5) Insufficient Service of process
6) Failure to state a claim upon which relief can be granted
7) Failure to join a party under rule 19
What 4 Grounds for Motion to Dismiss will be waived if they are not brought at D’s first time in court or in First responsive pleading
- Lack of PJ
- Improper Venue
- Insufficient process
- Insufficient service of Process
What happens If D files a Rule 12 motion and the court subsequently denies it?
If D files a Rule 12 motion and the court subsequently denies it, D’s answer is due within 14 days of the Court’s order UNLESS the court provides otherwise.
