Service of Process Flashcards
SERVICE OF PROCESS (Rule 4)
To inform the defendant of the pending action.
Process
● Must serve both the complaint + summons, if not, service is not proper.
● Must be served within 90 days of filing complaint.
▪ If the plaintiff can show good cause, the court must provide the plaintiff additional time for service.
● Anyone at least 18 years old and not a party can serve process.
● How can process be served? (Option 1)
Option 1 – Manner prescribed by state court in the state where:
▪ Federal suit has been filed; OR
▪ Where the defendant will be served.
How can process be served? (Option 2)
o Option 2 – Manner specified by Federal Rule 4
▪ If the defendant is a natural person (4 options):
● Deliver process to the defendant (through a 3rd party);
● Leave at the defendant’s usual abode with a person of suitable age and discretion residing there;
● Serve the defendant’s registered agent; or
● Mail with a letter requesting the defendant waive in-person service.
o If the defendant declines to waive, they become responsible for the cost of personal service.
o If the defendant is a corporation, partnership, or association (3 options):
▪ Deliver process to an officer;
▪ Deliver process to a managing agent or general agent; or
▪ Deliver process to any other agent authorized by appointment or by law to receive service.
● If law requires service by mail, it must be by hand and mail.
Service and Personal Jurisdiction
o Service of process activates the court’s authority to assert PJ.
o If a court has the power to assert PJ over a party, that power becomes active at the moment the defendant is served with process (or a waiver is filed with the court, if service is accomplished by a request for waiver).
Service and Due Process:
The defendant is entitled to notice of the claims against him and an opportunity to respond to those claims.
o Notice through service: If served, basically have notice.
▪ The key is whether service is reasonably calculated to inform the defendant of the action against them.
o Notice without service: May be a constitutional issue.
▪ The key is whether the plaintiff took steps that were reasonably calculated to inform the defendant of the action against them.
New Claims Filed during the Lawsuit
o Service of process is necessary when a new party has been added to the lawsuit (such as through impleader). Without process on the new party, the court’s power of PJ over the party will not be activated.
o For counterclaims, cross-claims, and other claims against current parties, service of process is unnecessary.
Answer
The defendant admits or denies the plaintiff’s allegations and lists defenses he might have.
● For each allegation, the defendant should specifically admit or deny. If there is a failure to deny, it is deemed admitted.
Defenses
o No limit to how many, but common defenses are statute of limitations, statute of frauds, and assumption of risk.
o Waiver: If a defense is not included in the answer, generally it’s forfeited.
▪ Exceptions: The following are not forfeited:
● Failure to state a claim upon which relief should be granted;
● Failure to join a necessary party; and
● Lack of SMJ.
Motion for more definite statement
The court will order a pleading to be clarified if it is so vague that the responding party cannot reasonably prepare a response.
Motion to strike
The court can (on its own or on motion) order material stricken if the complaint/answer contains redundant, immaterial, or scandalous stuff.
Motion to dismiss
Seeks dismissal, can be filed by any defending party.
Timing of Responses
- Initial response (answer or pre-answer motion)
- If the defendant was actually served with process - 21 days to respond.
- If service of process was waived - 60 days to respond.
- If the defendant responds with one of the above motions (motion for more definite statement, motion to strike, or motion to dismiss) and it is denied, the defendant must file an answer within 14 days of denial.
