Notice/Service of Process Flashcards
What is the basic idea of notice/service of process?
In addition to PJ, the defendant is entitled to notice that she has been sued. As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.” In a regular lawsuit, 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, these two documents are sometimes called “process.”
The plaintiff fills out a form summons for the clerk of the court to sign, seal, and issue. Thereafter, the plaintiff 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 may serve process. The process server need not be appointed by the court. (Some state courts require appointment by the court.)
When must process be served?
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 US?
a. Personal Service
For personal service, process is given to the defendant personally anywhere.
b. Substituted Service
Substituted service means serving a substitute for the defendant. Substituted service can be done only (1) at the defendant’s usual place of abode; (2) with someone of suitable
age and discretion; (3) who resides there. In federal court, substituted service may be used even if personal service is possible. Must the defendant reside there every day of the year for it to qualify as her “usual place of abode”? No. It’s a common sense determination.
Must the person on whom service is made be related to the defendant? No, but the person must reside there.
c. Service on Agent
Process can be delivered to the defendant’s 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
In addition, methods for serving process that are permitted by the law of the state (1) where the federal court sits or (2) where service is made are permitted. What is a good example of how state law might apply? Some states allow service of process by mail.
How do you give notice/serve process on a minor or incompetent person in the US?
Service on a minor or incompetent person may be made only by a method permitted by the law of the state in which service is to be made.
How do you give notice/serve process 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:
• As directed by the American court; or
• Method allowed by the foreign country’s law; or
• Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
• Personal service in the foreign country (unless prohibited by its law); or
• Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).
What is waiver of service of process?
A defendant can waive service of process. To request this waiver, the plaintiff mails the defendant a notice and request
to waive service. The plaintiff must include a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (for example, self-addressed, stamped envelope). 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. Waiver can be used for individuals and entities.
How does waiver of service effect other defenses?
A defendant who waives service of process does not waive any defenses like lack of PJ.
When is waiver effective?
If the defendant signs and mails the waiver form back to the plaintiff, the plaintiff files the waiver in court; the waiver is effective then. That means that for timing purposes, we act as though the defendant was served with process on the day that the plaintiff filed the waiver form with the court.
What is the penalty for failing to waive service?
Suppose the defendant fails to return the waiver form, and the plaintiff then has the defendant served personally or by substituted service. If the defendant did not have good cause for failing to return the waiver form, the defendant must pay the costs of service.
How do you prove service of process?
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.
What is the 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. That is why whether we have PJ is the same for federal court as it is for state court.
What is immunity under service of process?
If the defendant goes to State X to appear as a party, witness, or attorney in a different civil case in State X, the defendant cannot be served with process for a civil case in federal court in State X. The defendant is immune from service of process.
What is the service of other documents?
Other documents, such as an answer, other pleadings, motions, and discovery, are “served,” but we don’t need a summons or to do it so formally. We serve these documents by delivering or mailing the document to the party’s attorney or to a pro se party, that is, someone who is proceeding without a lawyer.
Can you serve these documents by email? Yes, if the parties agree. Suppose we mail discovery requests to the other party. Service is deemed complete when they are mailed. As we will learn later, the receiving party generally has 30 days in which to respond to the requests, but here three days are added to the period because they are mailed.
