Notice/Service of Process Flashcards
Notice Rule
In addition to personal jurisdiction, the defendant must be given notice that they are being sued.
Notice = Service of Process
Two documents needed for process
(1) Summons
(2) Copy of complaint
Who can serve process?
Any person who is at least 18 years old AND not a party to the action
The process server need not be appointed by the court (but some states require it).
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.
May be extended for good cause
Service on an individual in the United States
Personal Service (in-hand delivery, anywhere)
Substituted Service can ONLY be done:
(1) At the defendant’s usual place of abode
(2) with someone of suitable age and discretion
(3) who resides there
Service on an Agent
- Ok if done within the scope of the agency relationship
State Law Methods
We can use the service law of the state (BOTH the state where the federal court sits AND the law of the state where service is made) E.g., law allows service by mail.
Service on a Business or Organization
Service on an officer or agent (e.g., President, secretary)
State Law Methods (law of the state where the federal court sits or the law of the state where service is made)
Service on a minor or incompetent person
Allowed ONLY by a method permitted by the law of the state in which service is to be made.
Serving Process in a Foreign Country
A method allowed by international agreement (e.g., Hague Convention) may be used.
If no agreement:
- As directed by the American court
- Method allowed by the foreign country’s law
- Method directed by foreign official in response to a letter of request (letter rogatory) from the American court
- Personal service in the foreign country (unless prohibited by its law)
- Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).
Must still be reasonably calculated to give notice
Waiving Formal Service
Plaintiffs mails a request to waive service to the Defendant.
The plaintiff MUST include a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form
Defendant’s Response to Waiver Mail
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
Effect of a waiver on other defenses
A defendant who waives service of process DOES NOT waive any defenses like lack of PJ.
When is waiver effective?
The waiver is effective when the plaintiff files the waiver in court, after the defendant returns it.
Penalty for Failing to Waive 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 to Prove Service of Process?
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).
Service of Other Document (e.g., discovery, motions)
Must be served, BUT no summons required and it is not done formally.
Can only be done via email if parties agree
