SERVICE OF PROCESS

Question 1

Service contains…

Answer 1

Summons: contents- attorney (4(a)), issuance- clerk (4(b))
+
Complaint:

Purpose: give D notice and an opportunity to be heard. Method has to be constitutional- calculated to actually provide notice

Question 2

Constitutional minimum for SoP?

Answer 2

Process must be:

1. reasonably calculated
2. to provide actual notice
3. under the specific circumstances

Mailed notice is const. minimum where D’s whereabouts are ascertainable

Question 3

Borrowing state SoP rules- 4(e)(1), (h)(1)(A)

Answer 3

• state service rules where case is filed

- state where service is made

Question 4

SoP in CA

Answer 4

Manner:

• personal
• substituted
• mail and acknowledgement- you can send an endorsed acknowledgment
• outside state
• publication (twitter)

Time to serve:
- subject to mandatory dismissal if not done three years from the date of the commencement of the action

Question 5

Service upon whom?

Answer 5

• individuals
• authorized agents
• corporations/entities (federal and state)
• public entities

Question 6

service by whom?

Answer 6

• non-party
• at least 18
• sometimes by marshal

Question 7

Federal manner of SoP

Answer 7

• personal: to someone in the whom category IN PERSON THROUGH PROCESS SERVER
  CANNOT SERVE BY MAIL (that’s only for waiver!!!!0
• substituted: FED VERSION OF CA BUT NARROWER- can’t be at a business, etc.
• borrowed from the state service was done in or court is to be heard in?: mail and acknowledgement? outside state? publication?
• cf. FOREIGN SERVICE: usually governed by conventions i.e. Hague- mail not automatically excluded

Question 8

Time to serve

Answer 8

• 90 day limit
• applies domestic Ds ONLY
  foreign corp: 90 doesn’t apply because it would be rally hard to serve them
• good cause
• motion to enlarge- asking for permission. better to do than beg for forgiveness CA IS DIFFERENT
  4m governs even diversity cases bc we’re in federal court

Question 9

waiver of service

Answer 9

Unique to federal court! someone can agree to accept service, but 4d is a waiver NOT acceptance! approx 25 states follow this NOT CA

• request for waiver: here you’re sending someone a paper trying to get them to waive serve. must be in WRITING; properly addressed to someone in the whom category (not their lawyer); with complaint, don’t need to include summons, 2 waiver forms; content- form 5, prepaid means of return, consequences of failure to return; MUST send with date because from that date you’ll have certain requirements; delivery- first class mail is traditional; other reliable means (hand delivery, overnight, email), twitter if it’s reliable
• duty to waive/duty to avoid unnecessary expenses of service
• method of transmission
• benefit of waiving
• burden of not waiving
• effect of waiver