Notice/Service of Process

Question 1

What does service of process consist of? (2 Documents)

Answer 1

(1) Summons - formal court notice of suit and timing for response
(2) Copy of the complaint

Question 2

Constitutionality of notice

Answer 2

Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the action.

Question 3

Process definition

Answer 3

Delivering a summons and copy of the complaint to the defendant.

Question 4

Who signs the summons form?

Answer 4

Plaintiff fills out the form summons, and the clerk of the court signs, seals, and issues it.

Question 5

Who can serve process?

Answer 5

Any person who is (1) at least 18 years old and (2) not a party to the action.

Question 6

When is process served?

Answer 6

If D is in the USA, service must take place within 90 days of the filing of the complaint (unless an extension is granted for good cause)

Question 7

How is process served? (4 options)

Answer 7

(1) Personal service
(2) Substituted service
(3) Service on agent
(4) State law methods

Question 8

Service process: (1) Personal Service

Answer 8

Process is given to the defendant personally anywhere

Question 9

Service Process: (2) Substituted Service

Answer 9

Serving a substitute for D. Can only be done (1) at D’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there.

Question 10

Substituted service: Usual place of abode

Answer 10

A defendant does not have to reside in a place for every day of the year for it to qualify as their usual place of abode. For example, if D lives in a summer home during the summer and you service process there during the summer, that would be acceptable. It would not be if you tried it in the winter, though.

Question 11

Service Process: (3) Service on Agent

Answer 11

D’s agent can be acceptably served if receiving service is within the scope of their agency. Ex - when agent is appointed by contract.

Question 12

Substituted and agent service where personal service is possible

Answer 12

This is fine - even if personal service is available, in federal court, substituted and agent service are acceptable.

Question 13

Service process: (4) State law methods

Answer 13

Service is permitted by the law of the state (1) where the federal court sits or (2) where service is made. Ex - some states allow service by mail.

Question 14

Service on a business or organization

Answer 14

Business or organization may be served by:
(1) Delivering to an officer (for example, president, treasurer) or a managing or general agent
(2) Using a method permitted by the state (a) where the federal court sits or (b) where service is to be made

Question 15

Service on a minor or incompetent person in US

Answer 15

May be made only by a method permitted by the law of the state in which service is to be made

Question 16

Service on parties in a foreign country

Answer 16

Can use a method allowed by international agreement.
If there is no such agreement to use, options are:
(1) As directed by US court
(2) Method allowed by foreign country’s law
(3) Method directed by foreign official in response to a letter of request in American court
(4) Personal service in foreign country if permitted by foreign country’s law
(5) Mail sent by the clerk of the American court, requiring sign receipt, if permitted by foreign country’s law

Question 17

Waiver of service of process

Answer 17

D can waive service.
P must mail D a notice and request to waive service. P must include a copy of complaint and two copies of a waiver form with prepaid means of returning form. D must waive within 30 days (or 60 if outside US).

Question 18

Effect of waiver on defenses

Answer 18

Waiver of service of process does not waive any defenses, like lack of PJ.

Question 19

When waiver is effective

Answer 19

Waive is effective when D signs and mails waiver to P, and P files waiver with the court.

Question 20

Penalty for failure to waive service

Answer 20

If D did not have good cause for failing to return waiver form, D must pay the costs of service.

Question 21

Proving service of process

Answer 21

Process server files a report with court detailing how service was made. If server is a civilian, report is by affidavit. Failure to file report does not affect validity of service.

Question 22

Geographic reach of service

Answer 22

Process may be served within the state in which the federal court sits. May be served outside that state if state law allows.

Question 23

Immunity (Service)

Answer 23

If D goes to State X to appear as a party, witness, or attorney in a different civil case in State X, D cannot be served with process for a civil case in federal court in State X.

Question 24

Mail and email service of process

Answer 24

Email service is possible if both parties agree. When process is mailed, receiving party generally has 30 days in which to respond to requests, but three days are added for mailed service.