Service and Notice

Question 1

Service of process and notice

Answer 1

• The serving of summons and complaint

Question 2

Summons

Answer 2

Form explains to defendant that he has been sued, court sued in, when response is due, failure to appear and defend will result in default judgment, advises def to maybe seek a lawyer

Question 3

Complaint

Answer 3

information from plaintiff in general terms about what lawsuit is about (hopefully satisfying Rule 8)

Question 4

Service is valid when …

Answer 4

satisfies the governing, relevant statute

Question 5

Rule 4

Answer 5

Service rules

Question 6

What Rule 4 parts are we expected to know?

Answer 6

Rule 4
(c) - General service of summons process
(e) - Serving an individual in US
(h) - Serving a corporation

Question 7

Rule 4(c)

Answer 7

General Summons Service

• A summons must be served with a copy of the complaint and within the allotted time frame
• A person 18+ and non-party may serve summons
• P can request the court to order service by US marshal or specific person

Question 8

Rule 4(e)

Answer 8

Serving an Individual in the US

• Unless otherwise stated by federal law, an individual (except minor, incompetent, or person w/ waiver filed) may be served in US by:
  (1) following state law for an action in courts of general jurisdiction in the state where district court is located or where service made; or
  (2) doing any of the following:
  (A) delivering summons & complaint to individual personally
  (B) leaving s&c at individual’s dwelling or usual place of abode w/ someone of suitable age & discretion who resides there; or
  (C) delivering s&c to agent authorized by law to receive the service

Question 9

Is service by regular mail allowed under federal rules?

Answer 9

FRCP = regular mail is NOT sufficient UNLESS following state law

Question 10

Time Limit for Service After Filing Complaint

Answer 10

90 days
If not filed within then, case is dismissed unless show good cause

Question 11

Rule 4(h)

Answer 11

Serving a corporation, partnership, or association

• Unless fed law states otherwise or waiver has been filed, a domestic or foreign corp, partnership, or unincorp assoc. must be served:

(1) in US judicial district
(A) in manner prescribed in Rule 4(e)(1) for serving an individual; or
(B) delivering a copy of s&c to an officer, managing general agent, or other agent authorized by appt or law to receive service and — if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or
(2) at a place not within US judicial district, in any manner prescribed by Rule 4(f) for serving an individual, except for personal delivery under (f)(2)(C)(i)

Delivering = In-hand service

Question 12

How is proper notice governed

Answer 12

1. Due process clause of the United States/Constitution
   —-Some means of notifying the defendants aren’t good enough because they do not give due process
2. Method of service must be authorized by statute or court rule
   —IT IS NOT ENOUGH THAT DEFENDANT USES CONSTITUTIONAL METHODS
   —Statutes and court rules typically require MORE than constitutional minimums

Question 13

Difference between service and filing the complaint

Answer 13

• Filing the complaint - what you do with the court
• Service of complaint - what you do when you give it to the defendant

Question 14

Federal court view on service

Answer 14

They borrow the state service rules where the ACTION is brought

OR

where SERVICE was made

Question 15

Valid service and constitutional standard

Answer 15

Valid service CANNOT violate due process clause of Constitution

Question 16

Jones v. Flowers Constitutional Notice Standard

Answer 16

REASONABLENESS

Holding that the constitutional standard of notice is reasonably calculated when you consider all the circumstances

If state knows that notice fails, the importance (e.g., taking away someone’s home is big) and interest, there must be ADDITIONAL reasonable steps to do if PRACTICAL

Question 17

Analysis if Notice of Service is Valid/Constructive Notice Test

Answer 17

When there is a question about constructive sufficiency of notice, the standard is whether the notice was reasonably conducted under the circumstances to appraise the affected party

Reasonableness Test

• Effectiveness of notice
• Burdensomeness
• State and individual interest
• Available alternatives (certified mail, called or emailed, personal service (very effective but very burdensome)

Question 18

Is actual notice required

Answer 18

NO - Actual notice is not required for the notice to be constitutional

Question 19

Notice for Different Beneficiaries (Mullane)

Answer 19

• A state does not have to serve every person in hand but notice must be REASONABLY CALCULATED to inform interested parties of pending action and give them an opportunity to respond
• Unknown beneficiaries = a publication in newspaper is sufficient
• Known beneficiaries = must be more direct than publication when the names and addresses of the beneficiaries are known

Question 20

Actual notice vs Defective Service

Answer 20

Actual notice of the action will not, in itself, cure an otherwise defective service
Can’t just say violated service rules but he knew!

Question 21

What happens when the complaint is filed in a different state than where service was performed?

Answer 21

• Look at both court state and service state
  – Only one state needs to “say yes” to the service performed to find it appropriate

Question 22

Waiver of Service

Answer 22

Rule 4(d)
– IS NOT SERVICE
– Waiver is designed to avoid formal service
–Only available in some situations (not available in government situations)
–If defendant does not return a signed waiver, formal service under rules must be taken
–Unless D had good cause not to sign waiver, he will be on the hook for cost of formal service (attorney fees or any motion initiated to collect funds)

Question 23

Reasons why may NOT want to send back the waiver

Answer 23

–Statute of limitations

–Some Plaintiffs not on top of things: Some P will not realize that they had to serve you until after statute of limitations has run

–Send a message to the other side that you will battle for every inch (will pay anything for formal service; make frustration)

–File a counterclaim in a forum that is good for you