Notice/Service of Process Flashcards
FRCP - Service of Process
What is notice comprised of?
(a) summons (formal court notice of suit and timing for response) AND
(b) copy of the complaint
These two documents together are called “process”
Summons is signed, sealed, and issued by court clerk
Constitutional requirement for giving notice: method used must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action”
* Notice is required under Due Process Clause
FRCP & CA - Service of Process
Who can serve process?
FRCP: Anyone at least 18 years+ and not a party to the action
FRCP - Service of Process
When does process need to be served?
D inside US: 90 days from filing complaint
FRCP - Service of Process (US Parties)
How is process served if D is an individual/business in the US?
Individual: Four different methods | Business: Two different methods
D is Individual within US:
* Personal Service (hand delivery): can personally give process to D anywhere
* Substituted Service: serve substitute for D (a) at D’s usual place of abode, (2) with someone of suitable age and discretion (3) who resides there (doesn’t need to be related to D)
* Service on Agent: Receiving service must be within scope of agency (ex. agent appointed by contract)
* State Law Methods: look at laws of (1) state where federal court sits or (2) state where service is permitted
D is Business/Organization within US
* Deliver process to officer (president/treasurer) or managing/general agent
* State Law Methods
Usual place of abode: D doesn’t need to live there every day of the year (ex. for substituted service, OK to leave process with live-in butler)
After serving process, process server must file report w/court detailing how service was made (by affidavit if server was civilian). Failure to file doesn’t affect validity of service.
FRCP - Service of Process
Can service be made on a minor or incompetend person?
Yes, but only by method permitted by law of state in which service is to be made
FRCP & CA - Service of Process (Foreign Parties)
How is process served on parties in a foreign country?
- As directed by an American court
- Method allowed by foreign country’s laws
- Mail sent by CLERK of the American court, requiring signed receipt [If P herself mails the service internationally, it FAILS]
- Personal service in foreign country (unless its laws prohibit it)
- Method directed by foreign official in response to letter of request from American court
Or method allowed by international agreement (ie Hague Convention)
FRCP - Waiving Service of Process
How can a defendant waive service of process and why would D do this?
P mails D notice + request to waive service (copy of complaint and two copies of waiver form) - prepaid, self-addressed/stamped envelope
* To waive, D must execute and mail waiver within 30 days (60 days if D outside US)
* Waiver is effective when P files waiver in court (D is “served with process” as of this filing date)
Benefit: D gets 60 days to answer complaint (90 day sif outside US)
Consequence: If D fails to return waiver form and P personally serves notice (or by substituted service), D pays cost of service if D doesn’t have good cause for not returning form.
FRCP - Defenses
If D waives service of process, does D also waive defenses, like lack of PJ?
NO
What is an affidavit?
Sworn statement, given under oath
FRCP - Immunity from Service of Process
When is a defendant immune from service of process?
If D goes to State X as a party, witness, or attorney in a different civil case in State X.
Rule doesn’t apply in CA
FRCP & CA - Service of Other Documents
How do you serve other documents?
Answers, other pleadings, motions, and discovery
Delivering/mailing document to party’s attorney (or pro se party)
* If discovery requests mailed, service is “complete” when mailed, under mailbox rule (3 days added to time required for response under FRCP; for CA, 5 days added OR 10 days if service outside CA)
If parties agree, by email
CA - Service of Process
How is process served on individuals in CA?
Personal service: same as FRCP - deliver to D anywhere in CA
Substituted Service: Can only be used if personal service first attempted and “cannot with reasonable diligence” be done
* Process must be left with competent member of household at least 18 yrs old
* Person served must be informed of process’s contents
* Process must also be mailed by first-class mail, postage prepaid to D
* Deemed effective on 10th day after mailing
Service by Mail: mail copy of summons and complaint + two waiver forms to D with self-addressed stamped envelope addressed to P
* This is NOT a waiver of service; this is “service”
* D has 20 days (not 30 days) to return form
* Service is “complete” when D executes waiver
Service by Publication (last resort): P’s attorney provide affidavit showing D can’t be served + list reasonable diligence used in trying to serve D
CA - Service of Process
How is process served on corporations/businesses in CA?
(a) Deliver process to officer or general manager
(b) Deliver to registered agent for service of process at the registered office
* Agent can be served personally or process left with someone in charge during usual office hours
How is process served outside CA, but within US?
(Domestic, out-of-state service)
Any methods used for in-state service
Mail: Allows use of mail, postage prepaid, return receipt request (which isn’t allowed in CA) - D signs receipt proving receipt
* Acknowledgment form not required
* Deemed effective on 10th day after mailing
PJ must exist!!
Does CA provide immunity from service when D is in the state for the purposes of another proceeding?
NO. If person is in CA to be witness/party for another civil case, person can be served for civil case in state courts but is immune from service for federal civil case.
