Service and Process Flashcards
What is a summons called in GDC?
Either: Warrant, or Notice of motion for judgment
What is a summons called in CC?
Summons
What is process?
(1) a summons, and (2) a copy of the complaint
What is summons?
a formal document issued by the court that commands the D to respond to the allegation.
Who may serve process? JX limitation? Payment?
an adult (18) 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.
When serving indiviuals, Virginia follows a descending order rule. What does that mean?
You can only move down the ladder if one of the “higher” forms of service is impossible.
Natural Person Service
What is the hierarchy of service in VA?
- Personal (or “actual”) service. 2.Substituted service. 3.Posted service.
Natural Person Service
What is personal service?
Actual, physical delivery directly to D. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.
Natural Person Service
How is substituted service performed?
Must be served: -At D’s usual abode -On member of D’s family who is at least 16 years old, and not a guest or temporary sojourner
A family member can be a guest/temp. sojourner
Natural Person Service
How is posted service performed? Can this form of process support a default judgment? Can non-residents be served this way?
- Post a copy of process on the front door of D’s usual place of abode AND mail a copy of process to that same address
- This method of service cannot support a default judgment unless a copy of service was mailed to the defendant at least 10 days before judgment
Non-residents can be served in the same way, but service may also be made on the secretary of the Commonwealth.
What are the immunity rules when D is in VA to be a witness for a civil case?
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
There is immunity for one summoned to appear before the grand jury or in a criminal case; but…
even then, court can deny immunity if would thwart efficient administration of justice.
How is service performed on Virginia Entities (Corporation, LLC, partnerships, associations, etc.)?
- Service on officer, director, or registered agent
1. Partnership - General Partnerships: service can be made on general partner
- Limited Partnership: service can be made on the registered agent
2. No registered agent? service can be made on any agent of the entity
What is “the return” or “proof of service”?
A report to the court by an officer who served process, saying what he did to effect service
Why? court needs this so it can set deadlines for D’s response
Can a civilian make the proof of service report?
A civilian can do this too, but it is prima facie evidence of service if an officer does it, not so with a civilian.
The proof of service must be filed within ________ of service.
72 hours
What tolls the statute of limitations? Service or filing?
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
What is the curing statute?
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
When does the curing statute NOT apply?
In divorce and annulment cases
Waiver
What is waiver of service of process?
Where the D agrees to acknowledge the lawsuit without formal service of process
P can send the D a request for waiver. D is obligated to minimize the cost of service and accept the request for waiver, and if he fails to accept, he is responsible for the cost of service.
If D actually recieves process within a year of the filing of the complaint…
service will be sufficient even if the service rules were technically broken.
Server must have acted in good faith.
D’s Response to Service of Process
How many days does the D have to respond to the complaint upon service of process?
21 days
magic number, common in VA Civ Pro
D’s Response to Service of Process
How many days does the D have to respond to the complaint if they waive service of process?
60 days
OR if the D is out of state, 90 days to respond
D’s Response to Service of Process
There are one types of required responses upon service or waiver of service, what are the optional responses?
eight
- Motion to dismiss for lack of SMJ
- Motion to quash service of process
- motion to dismiss for failure to serve process
- motion objecting to venue
- motion for bill of particulars
- motion craving oyer
- Demurrer
- Plea in Bar
D’s Response to Service of Process
Motion to dismiss for lack of smj is obvious, but what is a motion to quash service of process?
challenges the court’s personal jurisdiction
D’s Response to Service of Process
what is a motion to dismiss for failure to serve process? standard?
Argues that service has not been served correctly. If server’s failure was innocent and reasonable then VA will deem service proper.
D’s Response to Service of Process
What is – motion for bill of particulars
Argues that the D cannot respond to the complaint without more information
D’s Response to Service of Process
What is – motion craving oyer?
Asks the P to provide a document referred to in the complaint, and which is essential to the P’s claim.
D’s Response to Service of Process
what is – demurrer?
- federal equivalent = 12(b)(6) motion to dismiss for failure to state a claim
- argues that P’s allegations fail to state a claim upon which relief can be granted.
D’s Response to Service of Process
what is – Plea in Bar?
Used when a D has a complete defense to one of the P’s claims. Allows D to put on evidence of an affirmative defense
D’s Response to Service of Process
What is the one require response to a complaint?
An Answer
D’s Response to Service of Process
When must D file an Answer?
if the court denies D’s pre-answer motion, the D has 21 days from the denial to file an answer.
D’s Response to Service of Process
For each allegation in the complaint, the D must ________ in the answer
admit or deny the allegation. Failure to deny = admission.
D’s Response to Service of Process
when must affirmative defenses be raised?
In the first defensive pleading (answer or prior defensive pleading) or it is waived.
