Notice/Service of Process Flashcards
Notice (service of process)
“Method must be reasonably calculated to give notice”
Process consists of two documents:
- Summons (formal court notice of suit and the timing for response)
- Copy of the complaint
Who can serve process?
Any person who is at least 18 years old and not a party to the lawsuit
When must process be served?
Within 90 days of filing the complaint unless there is a good cause to extend
Service of process on individuals (U.S.)
- Personal service
- Substituted service
- Service on agent
- State law methods
Personal service
Process is given to the defendant personally anywhere
Substituted service
Serving a substitute for the defendant only:
-At the D’s usual place of abode
-With someone of suitable age and discretion; and
-Who resides there
Usable even when personal service is possible
Service on agent
Process delivered to the defendant’s agent when receiving service is within scope of agency
Usable even when personal service is possible
State law methods (i.e., service of process by mail)
Methods for serving process that are permitted by state law in:
-State where federal court resides; or
-State where D is served
*Only method by which serving a minor or incompetent person is allowed
Service of process on businesses (U.S.)
- Serve an officer or agent of the business; or
- Use a method permitted by the state where:
-The federal court resides; or
-D is served
Service of process on parties in foreign countries
A method allowed by international agreement or, if no agreement on point, then by:
-As directed by the American court
-Method allowed by the foreign country’s law
-Personal service in foreign country (unless illegal)
-Method directed by foreign official in response to a letter of request from the American court
-Mail sent by the clerk of the American court, requiring signed receipt (note: P cannot mail service herself)
Waiver of service of process
P can request a waiver by mailing D:
-A copy of the complaint
-Two copies of the waiver form
-Prepaid means of returning the form (self-addressed, stamped mail)
Individual or corporate D waives service of process if she executes and mails back the waiver form within 30 days (60 days if D is outside U.S.)
-D must pay for service of process if she fails to return waiver form
-Does not waive any defenses, including lack of PJ
-Waiver is effective once P files the signed waiver form with the court
Misc service notes
-Unless service is waived, process server must file report with the court detailing how service was made (failure does not affect validity)
-Process can be served within the state in which the federal court sits and outside that state, if allowed by state law
-D is immune from service of process while appearing in another case
-No formal service is required documents other than the complaint
