Service of Process

Question 1

Waiver Requirements

Answer 1

P’s Choice: P chooses whether or not to extend waiver; D cannot waive unless P requests it.

Potential Waivees: P cannot request waiver for government, minors, or incompetents.

Question 2

Process for requesting waiver

Answer 2

In writing

Names the court and date sent

Addressed to D (not attorney)

Enclose copy of complaint

Does NOT need summons

2 copies of waiver form

Prepaid method of returning the form (first class, registered, certified, FedEx, UPS, fax)

Allow 30 days for domestic D to respond, 60 days for foreign D

File the returned waiver

Question 3

Summons Requirements

Answer 3

List all Ps and Ds (no et al)

List P’s attorney

Notify D that failure to appear = default judgment

Have identity, sign and seal of court

Notify D that response deadline is 21 days.

Question 4

Who can serve process?

Answer 4

Anyone 18 or older who isn’t a party

If P is indigent or “at sea,” then U.S. Marshalls must achieve service on their behalf.

Question 5

Deadlines for serving process?

Answer 5

Domestic: within 90 days of filing complaint

International: within 120 days, no deadline, reasonable diligence…standard is unclear.

Good cause for failure = time extension

Question 6

Results of Waiver

Answer 6

Domestic D: deadline to file answer extended to 60 days after waiver request

Abroad D: deadline to file answer extended to 90 days after waiver request

Question 7

Result of failure to serve

Answer 7

Failure to serve = dismissal w/o prejudice.

Question 8

Approved methods of service for individuals

Answer 8

(1) Follow state law (of state where action is pending OR where service is made). But, can’t let party serve process regardless.
(2) Personal, in-hand service (i) at their dwelling (not office), (ii) to someone of suitable age and discretion (lowest ever = 11), (iii) who resides there (no relation necessary).
(3) In-hand service to authorized agent.

Question 9

Approved methods of service for minors/incompetents

Answer 9

Minors/Incompetents: look to state law of place where service is made.

Question 10

Approved methods of service for entities

Answer 10

(1) Follow state law (in state where action is pending OR where service is made). But, can’t let party serve process regardless.
(2) In-hand delivery to authorized agent (officer, managing agent, general agent). NO service to directors.

Question 11

How to prove service?

Answer 11

Server submits an affidavit.