Service of Process 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
Papers are given to D personally
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.
If D waives formal service of process, does she waive any defense like lack of PJ?
No
How does the waiver become effective?
When D signs and mails the waiver form back to P, She files the waiver in court and it is effective then
Suppose D fails to return the waiver form. P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form
is there a penalty for D?
Yes - he must pay the cost of service
“Return” of Service.
The person who serves process must file a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit (sworn statement, under oath).
If the process server fails to file this report, it does not effect the validity of the service
Service of Other Documents
Other documents (e.g., answer, other pleadings, motions, discovery), get served, but we don’t need a summons or to do it so formally.
We serve these documents by delivering or mailing the document to the party’s attorney (or pro se party – a pro se party is one without a lawyer).
Suppose we mail interrogatories to the other party. You have 30 days in which to respond to interrogatories. Do you get extra time to respond if the interrogatories were mailed to you?
Yes - 3 additional days
Can you serve other documents by email?
Yes - if the party agrees
