Notice/Service of Process Flashcards
What is Notice/Service of Process? (basic idea)
NOTICE = SERVICE OF PROCESS
Defendant is entitled to notice that they have been sued
Constitutional matter - notice must be “reasonably calculated under all the circumstances, to apprise interested parties of the action.”
What documents does notice / (basically process) consist of?
2 documents:
1) summons - formal court notice of suit and the timing for response
2) copy of the complaint
**together - these can be called PROCESS
How does a Plaintiff get a summons?
fills out a form summons for the clerk of the court to sign, seal, and issue
thereafter - Plaintiff has process served in accordance with the Federal Rules
Who can serve Process in Federal Courts?
any person who is at least 18 years old AND not a party to the actin may serve process
The process server need not be appointed by the court (although some states require it to be)
When must process be served?
if the defendant is to be served within the US - service must take place within 90 DAYS of the filing of the COMPLAINT
**period may be extended for good cause
How is process served?
it depends on who it is being served upon:
- individual within the US
- business or organization in the US
- minor or incompetent person in the US
- parties in a foreign country
How is process served on an INDIVIDUAL within the US?
4 options:
1) Personal service:
2) Substituted Service
3) Service on Agent
4) State Law Methods
(1) PERSONAL Service on Individual
**process is given to the defendant personally ANYWHERE
(2) Substituted Service on an Individual
Serving a substitute for the defendant
Can be done only at:
(1) the defendant’s usual place of abode; (common sense determination)
(2) with someone of suitable age and discretion;
(3) who resides there (does not have to be related to D - just reside there)
**may be used even if personal service is available
(3) Service of an Agent on Individual
Process can be delivered to the defendant’s agent
**agent service can be used even if personal service is possible
(4) State Law Methods on Individual
Methods for serving process that are permitted by the law of the state:
(1) where the FEDERAL court sits
(2) where service is to be made
i.e. - some states allow for service of process by mail
How do we serve a business or organization in the US?
either of 2 ways:
(1) delivering to an OFFICER (i.e. president, treasurer) OR a managing or general AGENT - a copy of the summons and of the complaint; or
(2) using a method permitted by the state where (1) the federal court sits; or (2) where service is to be made
How do we serve 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 we serve parties in a foreign country?
(1) method allowed by international agreement (i.e. Hague Convention) may be used; OR
(2) if no such agreement –> options (subject to constitutional requirement that notice method must be reasonably calculated to give notice) are:
A) as directed by American court;
B) method allowed by foreign country’s law;
C) method directed by foreign official in response to a letter of request from American court;
D) personal service in a foreign country (unless prohibited by law);
E) mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by foreign country’s law)
Can Defendant waive Service of Process? If so, how?
Yes! To request waiver, the plaintiff mails the defendant a notice and request to waive service. The plaintiff MUST include (1) a copy of the complaint; and (2) 2 copies of a waiver form, with prepaid means of returning the form.
If the defendant executes and mails the waiver form to the plaintiff within 30 days (60 days if D is outside US) - she waives service of process
**waiver can be used for individuals as well as entities
