Notice/Service of Process Flashcards
Basic Idea
In addition to PJ, D is entitled to notice that she has been sued.
Must be reasonable calculated under the circumstances to apprise interested parties of the action.
“Process” usually consists of “summons” and a copy of the complaint.
Who can serve process?
At least 18 years old and not a party of the action.
When must process be served
In the U.S., within 90 days of filing the complaint.
May be extended with good cause.
Ways to serve process on an individual within the U.S.
1) Personal Service
2) Substituted Service
3) Service on Agent
4) State law methods
Personal service (for individual)
Process given to D personally
Substituted service (for individual)
Serving a substitute for the defendant.
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
Usual place of abode
Doesn’t need to be there every day of the year. Common sense determination
Service on agent (for individual)
Process can be delivered to D’s agent IF recieving service is in scope of agency.
State law methods (for individual service)
Methods for service process that are permitted by the law of the state:
1) where the federal court sits OR
2) where service is made
are permitted
example: mail
Service on a business or org in the US
May be served by:
1) delivering to an officer or a managing or general agent OR
2) using a method permitted by the state where the federal court sits or where service is to be made
Service on a minor or incompetent in the US
May be made ONLY by a method permitted by law of the state in which service is to be made
Service on parties in a foreign country
Methods per international agreement
OR (subject to them being reasonably calculated to give notice)
1) as directed by american court
2) per foreign country law
3) per foreign official in response to a letter or request from the American court
4) personal service in the foreign country
5) mail sent by the clerk of the american court, requiring signed receipt
Waiver of Service of process (+ method)
D can waive. Can be used by individuals or entities.
METHOD:
P sends copy of complaint, two copies of waiver form with prepaid means of returning form.
D must execute and mail to P within 30 days (60 if outside the US.
Effect of waiver on other defenses
Does not waive any defenses like lack of PJ
When waiver is effective
After D signs and sends (timely), when P file the waiver in court.
