Notice/Service of Process

Question 1

Notice - Constitutional Requirement

Answer 1

• notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action”

Question 2

Components of Notice

Answer 2

Typically two docs:
1) summons - formal ct notice of suit + timing for response AND
2) copy of the complaint

• together, these docs are sometimes called “process”

Question 3

Who Can Serve Process?

Answer 3

• any person who is at least 18 years old + not a party to the action
• need not be appointed by the court

Question 4

When Must Process Be Served?

Answer 4

• if def is to be served w/in the US, service must take place w/in 90 days of the filing of the complaint
  -> period may be extended for good cause

Question 5

Options for How to Serve Process - Individuals

Answer 5

• personal service
• substituted service
• service on agent
• state law methods

Question 6

Personal Service

Answer 6

• process is given to def personally anywhere

Question 7

Substituted Service

Answer 7

Can be done only:
1) at the defendant’s usual place of abode
2) w/ someone of suitable age + discretion
3) who resides there

• can be used in fed ct even if personal service of def is possible

Question 8

Substituted Service - Wrinkles

Answer 8

• def doesn’t need to reside there every day of the year (“common sense determination”)
• person on whom service is made doesn’t need to be related to def (but does need to reside there)

Question 9

Service on Agent

Answer 9

• process can be delivered to def’s agent
• OK if receiving service is within scope of the agency (ex: when agent appointed by contract)
• can be used even if personal service is possible

Question 10

State Law Methods

Answer 10

• can also use methods for serving process that are permitted by the law of the state:
  1) where the fed court sits OR
  2) where service is made

Question 11

Service on a Business or Org in the US

Answer 11

May be served by:
- delivering to an officer (ex: president, treasurer) or a managing or general agent a copy of the summons of the complaint OR
- using a method permitted by the state 1) where the fed court sits or 2) where service is to be made

Question 12

Service On a Minor or Incompetent Person in the US

Answer 12

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

Question 13

Service on Parties in a Foreign Country

Answer 13

• method allowed by international agreement may be used

If there’s no such agreement on point, the options are:
- as directed by the American ct OR
- method allowed by the foreign country’s law OR
- method directed by foreign official in response to a letter of request from the Am ct OR
- personal service in the foreign country (unless prohibited by its law) OR
- mail sent by the clerk of the American ct, requiring signed receipt

Question 14

Waiver of Service of Process

Answer 14

• def can waive service of process
• to request, pl mails def notice + request to waive service
  -> needs to include copy of the complaint + two copies of a waiver form, w/ prepaid means of returning the form
• if def executes + mails the waiver form to pl w/in 30 days (60 if out of US), def waives service of process
• can be used for individuals and entities

Question 15

Effect of Waiver on Other Defenses

Answer 15

• def who waives service of process doesn’t waive any defenses like lack of PJ

Question 16

When Waiver is Effective

Answer 16

• if def signs + mails the waiver back to pl, pl files the waiver in ct -> then it’s effective
• for timing purposes, we act as though def was served on the day pl filed the waiver form w/ the ct

Question 17

Penalty for Failing to Waive Service

Answer 17

• if def didn’t have good cause for failing to return waiver form, def must pay costs of service

Question 18

Proving Service of Process

Answer 18

• unless service is waived, process server files a report w/ the ct detailing how service was made
• if server was a civilian, the report is by affidavit (sworn statement, under oath)
• failure to file this report doesn’t affect the validity of service

Question 19

Geographic Reach of Service of Process

Answer 19

• process may be served w/in the state in which fed ct sits
• may be served outside that state if state law allows

Question 20

Immunity

Answer 20

• def immune from service of process if they go to State X to appear as a party, witness, or attorney in a different civil case
  -> can’t be served while there for another civil case in fed ct in State X

Question 21

Service of Other Docs

Answer 21

• by delivering or mailing to party’s attorney or to a pro se party (don’t need formal summons)
• includes answer, other pleadings, motions, + discovery
• can send by email if the parties agree

Question 22

Service of Other Docs - Timing

Answer 22

• service deemed complete when docs are mailed
• other party generally has 30 days to respond, BUT 3 days added to the period b/c the docs are mailed