Notice / Service of Process Flashcards
Basic Idea
in addition to PJ, the D is entitled to notice that she has been sued.
In a regular lawsuit, notice consists of:
- a summons, which is formal court notice of suit and the timing for response; and
- a copy of the complaint.
Together, these two documents are called “process”
Who can serve process?
Any person who is at least 18 years old and not a party to the action/litigation.
When must process be served?
Service must take place within 90 days of the filing of the complaint.
This period may be extended for good cause.
How is process served?
- On an individual within the US: personal service; substituted service; service on agent; or state law methods.
- On a Business or Organization in the US:
Delivering to an officer or a managing or general agent a copy of the summons and of the complaint, or using a method permitted by the state where the federal court sits, or where service is to be made. - On a minor/incompetent person in the US:
only by state law where service is to be made. - On parties in foreign countries:
A method allowed by international agreement or, if no agreement, as directed by the American court; mail sent by the clerk of the American court, requiring signed receipt; personal service in the foreign country, or method directed by foreign official in response to a letter of request.
Personal Service
process is given to the D personally anywhere
Substituted Service
Substituted service of D can be done only
- at the D’s usual place of abode;
- with someone of suitable age and discretion;
- who resides there.
Service on Agent
Receiving service is in scope of agency
State Law Methods
You can use methods for serving process allowed by state
I.e., some state law allows for service of process by mail.
Waiver of Service of Process
A D can waive service of process.
To request this waiver, the P mails the D a notice and request to waive service.
P must include a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form.
If the D executes and mails the waiver form to the P within 30 days (60 days if the D is outside the US), D waives service of process.
Waiver can be used for individuals and entities.
Effect of Waiver on Other Defenses
A D who waives service of process does not waive any defenses like lack of PJ
When Waiver is effective
If the D signs and mails the wiaver form back to the P, the P files the wiaver in court; the waiver is effective then.
We act as though the D was served with process on the day that the P filed the waiver form with the court.
Penalty for Failing to Waive Service
Suppose the D fails to return the waiver form, and the P then has the D served personally or by substituted service.
If the D did not have good cause for failing to return the waiver form, the D must pay the costs of service.
Proving Service Of Process
Unless service is waived, the process server files a report with the court detailing how service was made.
If the server was a civilian, the report is by affidavit.
The failure to file this report does not affect the validity of service.
Immunity
If the D goes to State X to appear as a party, witness, or atty in a different civil case in State X, the D cannot be served with process for a civil case in federal court in State X.
The D is immune from service of process.
Service of Other Documents
Other documents, such as an answer, other pleadings, motions, and discovery, are “served” but we don’t need a summons or to do it so formally.
We serve the documents by delivering or mailing the document to the party’s atty or to a pro se party.
You can serve by email if the parties agree. Service is deemed complete when they are mailed.
