Notice/Service of Process Flashcards
What is process?
1) summons (notice of suit and timing for response)
2) copy of complaint
Who can serve process?
Any person who is at least 18 years old and not a party to the action may serve process.
State law methods also available (where fed court sits or where service is made). Some states allow process by mail.
When must process be served?
if D within US, within 90 days of filing complaint. Period may be extended for good cause.
How can process be served on a person in US?
1) personal service anywhere
2) Substituted service: 1) at the defendant’s usual place of abode 2) with someone of suitable age and discretion 3) who resides there
3) Service on agent (if receiving service is in scope of agency)
4) State law methods (of state being served or where fed court sits)
How can process be served on a business int he US?
1) delivering to an officer or a managing or general agent
2) state method (of state being served or where fed court sits)
How can process be served on a minor or incompetent person?
1) ONLY by method permitted by state in which service is made
How can process be served on parties in foreign country?
1) Method allowed by international agreement
2) If no such agreement (subject to constitutional requirement that method be reasonably calculated to give notice) are: as directed by American court, method allowed by foreign country’s law, method directed by foreign official in response to a letter of request from the American court, personal service in the foreign country (unless prohibited by its law); or Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by foreign country’s law).
How to waive service of process?
1) P mails D notice and request to waive service. P must include copy of complaint and two copies of waiver from, with a prepaid means of returning the form.
2) D executes and mails the waiver form to P within 30 days (60 days if outside the US).
Effect of waiver or failure to waive?
1) does not waive any defenses like lack of PJ
2) Waiver is effective the day that the P files waiver in court. Act as though D was served with process on day P files waiver form in the court.
3) if D fails to return waiver, is served personally or with sub service, and did not have good cause for failing to return wavier form, D must pay costs of service.
Proving service of process?
1) unless service is waived, process server files a report with the court detailing how service was made. If server was civilian, by affidavit.
2) failure to file this report does not effect validity.
Where can process be served?
1) Within the state which federal court sits
2) Wherever state law allows.
Are there any immunities to service?
If D goes to State X to appear as a party, witness, or attorney in a different civil case, the D cannot be served with process for a civil case in federal court in State X.
What are the service requirements for other documents?
1) documents are served by delivering or mailing the document to the party’s attorney or to a pro se party.
2) Can serve by email if parties agree.
3) Service is deemed complete when they are mailed. However, three days added to timeline to respond if mailed. Example: generally have 30 days to respond to requests but if mailed would be 33 days.
