Notice/Service of Process Flashcards
In addition to personal jurisdiction, the defendant is entited to _____ that she has been sued.
notice
As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to…
apprise interested parties of the action.”
In a regular lawsuit, notice consists of two documents:
(1) a summons (formal court notice of suit and time for response); and
(2) a copy of the complaint.
Together, the summons and complaint are called…
process. Must have BOTH to constitute process.
How do you get summons?
You present it to the clerk of the court for signature and seal.
Who can serve process?
Any nonparty who is at least 18 years old.
Must the process server be appointed by a court?`
No.
If the defendant is to be served in the United States, service is to take place within no more than __ days after filing the complaint.
90
How is process served on an individual in the United States?
- Personal service
- Papers are given to the defendant personally anywhere he is.
- Substituted service
- Process is left with someone of suitable and discretion who resides at the defendant’s usual abode.
- Usual abode- where the defendant is currently living.
- Process can be delivered to D’s agent. OK if receiving service is in scope of agen- cy, e.g., appointment by K.
- State law methods
- Can use methors that are permitted by state law where the federal court sits or where service is made. (e.g. by mail).
In federal court, there is no preferences as to…
how service is made.
How can you serve a business or organization in the United States?
- Officer, managing or general agent.
- Deliver a copy of the summons and of the complaint to such a person.
- State law methods.
- Can use methods for serving process permitted by state law of the state (1) where the federal court sits or (2) where service is made.
How do you serve process on an minor/incompetent person in the United States?
Using any method permitted by the state where service is to be made.
For service in a foreign country, you may use a method allowed by international agreement (e.g. hague convention), or if there’s no such agreement on point, options:
- As directed by the American court;
- If reasonably calculated to give notice:
- Method allowed by the foreign country’s law
- Method directed by foreign official in response to a letter of request (letter rogatory) 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 the foreign country’s law).
How does a plainiff request a waiver of formal service of process?
Mail to D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P).
If the defendant executes and mails waiver form to P within __ days (__days if the defendant is outside the U.S.), the defensant waives formal service of process. Can be used for individuals and entities.
30; 60
If the defendant waives formal service of process, does the defendant waive any defense like lack of personal jurisdiction?
No.
When the defendant signs and mails the waiver form back to the plaintiff, what does the plaintiff do?
files it in court. It is effective then. Act as though D was served with process on the day P filed the waiv- er form in court.
Suppose D fails to return the waiver form. P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form, is there a penalty for D?
Yes, he must pay the cost of service.
How does the plaintiff prove 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 (sworn statement, under oath).
If the server fails to file the report, it doesn’t affect the validity of the service.
Where may process be served?
Process may be served within the state in which the federal court sits. It may be served outside that state if state law allows. That is why the assessment of whether we have PJ is the same for federal court as it is for state court.
A defendant is immune from service of process when:
The defendant is present in the state in which plaintiff attempted to serve him to appear as a party, witness, or attorney in a different civil case.
Other documents (e.g., answer, other pleadings, motions, discovery) get served, but…
we don’t need a summons or to do it so formally. We serve these documents by delivering or mailing the document to the party’s attorney (or pro se party – a pro se party is one without a lawyer).
Can you serve non-process documents by email?
Yes, if the party agrees.
Service is complete when the document is ______.
mailed
When service is made by mail, the recipient party gets an extra _ days to respond to the pleading.
3
