SERVICE OF PROCEESS Flashcards
Basic Idea of notice
D is entitled to notice that she has been sued.
What does notice consist of
Usually, this consists of:
- a summons (formal court notice of suit and time for response) and
- a copy of the complaint.
These two together is called process.
Who Can Serve Process?
Any nonparty who is at least 18 years old.
Does the process server have to be appointed by a court?
No
Ways of Service
- Personal service
- Substituted service
- Service on D’s agent
Personal service
Method of service by which a defendant must be served with original process (papers given to D personally), unless waived by the defendant
Where can D be personally served?
Anywhere
Substituted service.
Process is left with D’s butler at D’s summer home.
When is substituted service permissible?
1) Ds usual abode AND
2) we serve someone of suitable age and discretion
3) who resides there
Must D reside there every day of the year for it to qualify as his “usual abode”?
No - common sense approach
Must the person on whom service is made be related to D?
No
Service on Ds Agent
Process can be delivered to D’s agent. OK if
receiving service is in scope of agency, e.g., corporation’s registered agent, managing agent, or officer.
In federal court, can P use substituted or agent service even if personal service would be possible?
Yes
Rules for Service under State Law
We can use methods for serving process that are permitted by state law of the state where:
- the federal court sits or
- where service is made.
What is a good example of how state law might apply? To allow service by mail
Waiver by mail
Mail to D 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 D executes and mails waiver form to P within 30 days, D waives formal service of process.
