Service of Process Flashcards
General Overview of Service of Process
- Plaintiff first files a copy of the complaint and summons with the court and gets a copy back stamped and bearing court seal
- Plaintiff will serve a copy of the summons and complaint on the D within 90 days (91 in MI) or ask D to waive service
- After service, P files a “proof of service” with the Court
- Defendant answers complaint and lawsuit continues
General Rule of Service of Process
Must be constitutional. The Due Process Clause of the 14th Amendment mandates that notice must be reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action
When Party has actual knowledge notice was not received
If knows service by mail or posting (or other method) was not received, they are then required to try practicable alternatives
Notice when one acquires jurisdiction over property
Merely posting notice on the property or publication is not always adequate. Persons who are affected must be notified by mail if their address is known.
Who must serve the defendant? (federal court)
- any person 18 years old and not a party
- after serving D, process server must make a proof of service by filing an affidavit with the court that sets forth the manner in which the service was made.
What documents must be served? (Federal Courts)
- Summons and complaint
- Summons must contain:
a. name of the court and parties
b. directed to D
c. name and address of P’s attorney (or P’s address if unrepresented)
d. time within which the D must appear and defend
e. notify D that failure to appear and defend will result in a default judgment for relief demanded
f. a signature by the clerk and court’s seal
When must a defendant be served? (federal courts)
- within 90 days (91 days in MI) after the complaint is filed with the court
- If D is not timely served, court will dismiss the action without prejudice or extend time if there is good cause for the P’s failure
How must papers be served to an individual? (Federal Courts)
(SAID)
- State Law: follow the state law methods where the federal court is located or where service is made
- Agent: deliver a copy of each to an agent appointed (by D or law)
- Individual: delivery a copy of the summons and complaint to the individual personally
- Dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who lives there.
How must papers be served to a corporation, partnership, or association? (Federal Courts)
SO Options
- Use any of the state law methods where the district court is located or where service is made, or
- deliver a copy and summons of the complaint to an officer, a managing or general agent authorized, or any other agent appointed to receive service.
Serving a Foreign Corp: service may be made by any means directed by the court so long as it is not prohibited by international agreement (email would likely be permitted)
How does P ask for service waiver?
** In federal courts only, MI does not have **
- P may ask D to waive service of process by sending, by first class mail, the complaint, two copies of the waiver form, and a prepaid means for returning the waiver form.
- P must give D at least 30 days after the request was sent (60 days if outside the U.S) to return the waiver.
Why should a Defendant waive formal service? (federal courts)
- If the D does not waive, the court must make the D pay costs and attorney fee’s incurred in making the service
- A D who returns a waiver has 60 days rather than 21 to answer the complaint
Objecting to Process of Service
An objection to process (what was served) or service of process (the manner in which one was served) must be raised in the first responsive pleading (answer or motion).
