Notice: Rule 3 & 4 Flashcards
Rule 3
A civil action is commenced by filing a complaint with the court
4(a)(1)
SUMMONS CONTENTS MUST: (A) name: courts + parties; (B) be directed to defendant; (C) state the name + address of the plaintiff’s attorney or- if unrepresented- of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the D that failure to appear and defend will result in a default judgment; (F) be signed by the clerk; and (G) bear the court’s seal.
4(a)(2)
AMENDMENTS. The court may permits a summons to be amended.
4(b)
ISSUANCE. On or after filing the complaint, plaintiff needs to give summons to the clerk for signature + seal. If the summons is completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons+ copy must be issued for each + all defendants to be served
4(c)
SERVICE. (1) In general: Plaintiff needs to give summons + complaint served within the time allowed by Rule 4(m) & must furnish the necessary copies to the person who makes service. (2) By whom- any person at least 18 years old and not a party may serve a summons and complaint. (3) By a marshal/someone specially appointed- Can be at the plaintiff’s request OR if the P is authorized to proceed in forma pauperis under 28 USC §1915 or as a seaman under 28 USC §1916 then Court must authorize.
4(d)(1)
WAIVING SERVICE: (1) Requesting a Waiver- Person/corop./association subject to service under Rule 4(e),(f), or (h) has duty to avoid unnecessary expenses of serving summons. P notifies D of the action and can request D to waive service of summons. That notice and request must: (A) be in writing and be addressed (i) to D; or (ii) for a D subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form; (D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the defendant a reasonable time of at least 30 days after the request was sent- or at least 60 days if sent to the defendant outside any judicial district of the US- to return the waiver; and (G) be sent by first-class mail or other reliable means.
4(d)(2)
If a defendant located within the US fails, without good cause, to sign and return the waiver requested by a plaintiff located within the US, the court must impose on the defendant: (A) Expenses later incurred in making service; and (B) The reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses
4(d)(3)
Time to Answer After Waiver. A D who returns waiver before being served with process doesn’t need to serve an answer to the complaint until 60 days after the request was sent- or until 90 days after it was sent to the defendant outside any judicial district of US [foreigners].
4(d)(4)
Results of Filing a Waiver. When a plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.
4(d)(5)
Jurisdiction and Venue Not Waived. Waiving summons doesn’t waive objection to p.j. or to venue [you can still object to these things].
4(e)
): SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE US. UNLESS FEDERAL LAW PROVIDES OTHERWISE (GO BACK TO 4C AND SEE IF IT DOES), an individual- other than a minor, incompetent person, or a person whose waiver has been filed- may be served in a judicial district of the US by: o (1) Following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
o (2) Doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the person’s dwelling with someone of suitable age/discretion; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
