Service of Process Flashcards
What is a “summons” called?
- In GDC, it is called a warrant (if you use civil warrant as complaint) or notice of motion for judgment (if you use a motion for judgment as complaint)
- In circuit court, its just a summons
Who can serve?
An adult civilian who is not interested in the case or sheriff or deputy
* Officer may serve in her city or county and in contiguous localities
* P pays officer’s fee
How may you serve on an individual in Virginia?
IN THE FOLLOWING ORDER (i.e., must try one before going to two)
1. Personal (actual) service
2. Substituted service
3. Posted service
What is required for substituted service?
(1) Service must be at D’s usual abode
(2) Service must be made upon a member of D’s family at least age 16 and not a guest
(3) Process server must tell that person the purpose of the documents
What is required for posted service
First, must try personal service then substituted service, then:
1. Post a copy of process on D’s front door
2. At least 10 days before taking default judgment, mail process to her
3. Certify to clerk that mailing took place
4. In Circuit Court, must state that if D defaults, after 10 days from the mailing, P may seek default judgment
What is Virginia’s “curing statute?”
Where service is deficient, it will be “cured” if D actually and timely receives service (e.g., serve D’s ten-year-old son, but son gives summons and complaint to father)
* Does not apply to divorce/annulment
* D then has 21 days from the time he actually received service to respond (may move for extension)
May D waive formal service of process?
Yes–P may request by mail that D waive, and works same as in federal court
* Gives D 60 days to file responsive pleading if VA resident and 90 days if not
When is D immune from service in VA?
- If she is a witness in another civil case only if federal
- If she is summoned to appear before a grand jury or in a criminal case (but court may deny if it would thwart efficient administration of justice)
How may P effectuate service under the long-arm statute?
(1) Option 1:
1. P executes and files affidavit setting forth that D is nonresident and cannot be found with due diligence at D’s last-known address
2. P gives process and copy of affidavit to Secretary of the Commonwealth
3. Secretary sends process to D by certified mail
4. Secretary sends certificate of mailing to court (and service deemed complete when certificate received by clerk of court)
(2) Option 2–arrange for personal service out of state by one authorized to serve process there
How may P effectuate service on domestic corporations and qualified foreign corporations (non-VA corporations qualified to transact business here)
P may personally serve:
(1) Registered agent
* All corporations incorporated in VA (and non-VA corporations qualified to transact business here) must deisgnate registered agent to receive service of process
* If registered agent cannot be found at registered office, P can serve clerk of State Corporation Commission
(2) Any officer
(3) A director
How may P serve non-VA corporation not reigstered to do business here or who has not appointed a registered agent?
Service may be made on:
(1) Officer
(2) Director
(3) Agent of corporation found in VA
If none is found, 2 copies of process and affidavit of corporation’s last known address served on clerk of State Corporation Commission
How may P serve under NRMA?
Serve Commissioner of Motor Vehicles and P gives an affidavit of due diligence and of D’s nonresidence
* If affidavit is false, then there is no jurisdiction
When may service by publication be allowed and how does it work?
Only available in cases concerning rights to property or status, not in personam cases
* P must give affidavit he has used due diligence to find D, but without success
* If used, D has 50 days in which to respond to complaint
* Against non-resident in non-inpersonam case, P can ask sheriff in D’s county to serve process on him, and if he does so, D has 21 days to respond
What is a return (“proof of service”)?
Report to the court by one who made service, relating what she did to make service
* If done by an officer, prima facie evidence that what’s stated is true
* If done by citizen, merely evidence of service, but not prima facie evidence
* Return must be filed within 72 hours of serving process, signed by the person making service, and indicating jurisdiction and state where accepted
When is a case “commenced” for SOL purposes?
When the case is filed, which tolls SOL
* But P must have process served within 1 year of filing or the case will be dismissed unless he shows due diligence in trying to make service
