Service and Notice Flashcards
Service of process and notice
- The serving of summons and complaint
Summons
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
Complaint
information from plaintiff in general terms about what lawsuit is about (hopefully satisfying Rule 8)
Service is valid when …
satisfies the governing, relevant statute
Rule 4
Service rules
What Rule 4 parts are we expected to know?
Rule 4
(c) - General service of summons process
(e) - Serving an individual in US
(h) - Serving a corporation
Rule 4(c)
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
Rule 4(e)
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
Is service by regular mail allowed under federal rules?
FRCP = regular mail is NOT sufficient UNLESS following state law
Time Limit for Service After Filing Complaint
90 days
If not filed within then, case is dismissed unless show good cause
Rule 4(h)
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
How is proper notice governed
- 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 - 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
Difference between service and filing the complaint
- Filing the complaint - what you do with the court
- Service of complaint - what you do when you give it to the defendant
Federal court view on service
They borrow the state service rules where the ACTION is brought
OR
where SERVICE was made
Valid service and constitutional standard
Valid service CANNOT violate due process clause of Constitution
Jones v. Flowers Constitutional Notice Standard
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
Analysis if Notice of Service is Valid/Constructive Notice Test
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)
Is actual notice required
NO - Actual notice is not required for the notice to be constitutional
Notice for Different Beneficiaries (Mullane)
- 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
Actual notice vs Defective Service
Actual notice of the action will not, in itself, cure an otherwise defective service
Can’t just say violated service rules but he knew!
What happens when the complaint is filed in a different state than where service was performed?
- Look at both court state and service state
– Only one state needs to “say yes” to the service performed to find it appropriate
Waiver of Service
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)
Reasons why may NOT want to send back the waiver
–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
