Service and Process

Question 1

What is a summons called in GDC?

Answer 1

Either: Warrant, orNotice of motion for judgment

Question 2

What is a summons called in CC?

Answer 2

Summons

Question 3

Who may serve process?

Answer 3

an adult civilian who is not interested in the case or by the sheriff or deputy. An officer may serve in her city or county and in contiguous localities. Plaintiff pays the officer’s fee.

Question 4

When serving indiviuals, Virginia follows a descending order rule. What does that mean?

Answer 4

You can only move down the ladder if one of the “higher” forms of service is impossible.

Question 5

What is the hierarchy of service in VA?

Answer 5

1. Personal (or “actual”) service. 2.Substituted service. 3.Posted service.

Question 6

What is personal service?

Answer 6

Delivering process directly to D. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.

Question 7

How is substituted service performed?

Answer 7

Must be served: -At D’s usual abode -On member of D’s family who is both: At least 16 years old Not a guest or temporary sojourner by explaining the purpose of the service.

Question 8

How is posted service performed?

Answer 8

Must: -Post a copy of process on D’s front door -Mail a copy of process to D-At least 10 days before taking default judgment-Explain to D that P may seek default judgment 10 days later (only in Circuit Court) -Certify to the clerk that mailing took place

Question 9

What are the immunity rules when D is in VA to be a witness for a civil case?

Answer 9

If the other case is a Virginia case, no immunity. If the other case is a Federal case, immunity. Virginia is different than the Federal rules here

Question 10

There is immunity for one summoned to appear before the grand jury or in a criminal case; but…

Answer 10

even then, court can deny immunity if would thwart efficient administration of justice.

Question 11

When D is not a Virignia resident, he is served under…

Answer 11

The Long Arm Statute.

Question 12

What does the first long-arm service alternative require?

Answer 12

1.P executes and files an affidavit setting forth both: -That D is a non-resident or cannot be found -D’s last known address 2. P gives process and a copy of the affidavit to the Secretary of the Commonwealth3. The Secretary: Sends process to D by certified mail Sends a certificate of mailing to the court 4.Service is complete once the clerk of court receives the certificate,

Question 13

What does the second long-arm service alternative require?

Answer 13

P arranges for personal service out of state by someone authorized to serve process there Note: P obviously must have a basis for personal jurisdiction under the long-arm

Question 14

How is service performed on Virginia Corporations?

Answer 14

P personally serves either: -The corporation’s registered agent -Any officer of the corporation -Any director of the corporation -State Corporation Commission

Question 15

How is service performed on Non-Virginia Corporations?

Answer 15

If registered to do business in Virginia, same as VA corps. Otherwise, P either: 1.Personally serves either:-The corporation’s registered agent in Virginia -Any officer of the corporation in Virginia -Any director of the corporation in Virginia 2.Serves the following with the State Corporation Commission: -2 copies of process -Affidavit of corporation’s last known address

Question 16

How is service performed under the Non-Resident Motorist Act?

Answer 16

P serves the Commissioner of Motor Vehicles with an affidavit of due diligence and D’s non-residence

Question 17

When can service be performed by publication in Virginia?

Answer 17

Only in cases concerning rights to property or status (i.e., never in personam jurisdiction)

Question 18

What is “the return” or “proof of service”?

Answer 18

A report to the court by an officer who served process, saying what he did to effect service

Question 19

Can a civilian make the proof of service report?

Answer 19

A civilian can do this too, but it is prima facie evidence of service if an officer does it, not so with a civilian.

Question 20

The proof of service must be filed within ________ of service.

Answer 20

72 hours

Question 21

What tolls the statute of limitations? Service or filing?

Answer 21

Filing, so if service is not made until after the statute of limitations has run, that is okay as long as the suit was filed beforehand. But P must service process within 12 months of filing or else he cannot win judgment

Question 22

What is the curing statute?

Answer 22

even if service was improper, if D actually (i.e., in person) and timely​ (i.e., before D would be in default) receives service, it is okay

Question 23

When does the curing statute NOT apply?

Answer 23

In divorce and annulment cases

Question 24

The service rules above only apply to…

Answer 24

Process (i.e. complaint and summons.)

Question 25

What is the service rule for any other pleading/discovery document?

Answer 25

You can mail (or send by commercial delivery service), fax, or make in-hand delivery of a copy of the paper (or, with consent of party to be served, e-mail) to all counsel of record on or before the filing date.

Question 26

For service of other documents, whenever a party uses the mail, do you add three days to the time in which a response was required?

Answer 26

Yes.