Notice & Service of Process Flashcards
D is entitled to notice that she has been sued. In a regular lawsuit, notice consists of two documents:
(1) a summons: formal court notice of suit and the timing for response
(2) a copy of the complaint
What can serve process?
Anyone who is at least 18 years old and is not a party to the action may serve process.
The process server need not be appointed by the court, though it may be required in some states.
When must process be served? May it be extended?
If D is being served in the US, service must occur within 90 days of the filing.
The time may be extended for good cause.
How is process served on an individual within the US? (4 options)
(1) personal service: given to D anywhere
(2) substituted service: may only be given (i) at D’s usual place of abode; (ii) with someone of suitable age and discretion; (iii) who resides there.
(3) service on agent: delivered to D’s agent, if receiving service is in scope of agency
(4) state law methods: any method for serving process that are permitted by the state (i) where the federal court sits or (ii) where service is made, are permitted by the FRCP
How is process served on a business or organization in the US? (2 options)
(1) Delivering to an officer (e.g., president, treasurer) or a managing or general agent
(2) Using a method permitted by the state where the court sits or where service is to be made
How is process served on a minor or incompetent person in the US?
only by a method permitted by state law in which service is made.
In the absence of a controlling international agreement, what options does a plaintiff have to serve process on a party in a foreign country? (5 options)
(1) method directed by the American court
(2) method allowed by the foreign country’s law
(3) method directed by foreign official in response to a letter of request (letter rogatory) from the American court
(4) personal service in the foreign country (unless prohibited by its law)
**(5) mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law)
What must P do to request that D waive service of process?
P must mail D a notice and request to waive service. P must include a copy of the complaint and two copies of the waiver form, with a prepaid means of returning the form.
If D executes and mails the waiver form to the plaintiff within 30 days (60 if international), D waives service of process.
When is D’s waiver of service effective?
If D signs and mails the waiver form back, P must file the waiver in the court. The waiver is effective then.
Functionally, that means we act as though D was served with process on the day P filed the waiver with the court.
What is the penalty for failing to waive service?
If D fails to timely return the waiver form, and P subsequently has D served personally or by substituted service, D must pay the costs of service unless he had good cause for failing to return the waiver form.
In what situation might a defendant be immune from personal service?
If D goes to a different state to appear as a party, witness, or attorney in a civil case, D cannot be served with process for a different civil case in federal court in the other state.
