Notice/Service of Process Flashcards
Notice - Constitutional Requirement
- notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action”
Components of Notice
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”
Who Can Serve Process?
- any person who is at least 18 years old + not a party to the action
- need not be appointed by the court
When Must Process Be Served?
- 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
Options for How to Serve Process - Individuals
- personal service
- substituted service
- service on agent
- state law methods
Personal Service
- process is given to def personally anywhere
Substituted Service
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
Substituted Service - Wrinkles
- 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)
Service on Agent
- 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
State Law Methods
- 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
Service on a Business or Org in the US
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
Service On a Minor or Incompetent Person in the US
- may be made only by a method permitted by the law of the state in which service is to be made
Service on Parties in a Foreign Country
- 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
Waiver of Service of Process
- 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
Effect of Waiver on Other Defenses
- def who waives service of process doesn’t waive any defenses like lack of PJ
When Waiver is Effective
- 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
Penalty for Failing to Waive Service
- if def didn’t have good cause for failing to return waiver form, def must pay costs of service
Proving Service of Process
- 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
Geographic Reach of Service of Process
- process may be served w/in the state in which fed ct sits
- may be served outside that state if state law allows
Immunity
- 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
Service of Other Docs
- 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
Service of Other Docs - Timing
- 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
