Service of process Flashcards
Bulge provision
A federal court has personal jurisdiction over a party who:
(1) served within a U.S. judicial district and
(2) not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service.
This rule applies to third-party defendants joined by impleader, even if the service is outside of the state and beyond its long-arm statute jurisdiction.
Nationwide service of process
A federal court only has national personal jurisdiction when authorized by federal statute, such as for federal statutory interpleader actions.
Proper service
Service is proper if pursuant to the federal rules.
Under the federal rules, service may be made by:
(a) delivering the summons and complaint:
- to an individual persoanlly; or
- by leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(b) following state law for serving a summons in an action brought in courts of general jurisdiction:
- in the state where the district court is located—i.e., the forum state; or
- in the state where service is made.
Proof of service of process
Unless formal service is waived, a process server must submit proof of service to the court.
Failure to make proof of service, however, does not affect validity of the service.
The federal rules do not specify a time frame for making proof of service.
Due process requirements
Due process is met if the notice is reasonably calculated, under all the circumstances:
(1) to apprise interested parties of the pendency of an action; and
(2) afford them an opportunity to present their objections.
If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through:
(1) in-person delivery,
(2) registered mail,
(3) return receipt requested, or
some other means likely to notify the particular individual is required.
Voluntary presence
If a defendant is voluntarily present in the forum state and is served with process while there, then the state will generally have personal jurisdiction over the defendant.
Voluntary presence: “passing through” exception
When the defendant is merely “passing through” the forum state to attend other judiciary proceedings, she is not deemed voluntarily present for purposes of service.
Waiver of service
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.
Process server
Service of the complaint and summons may be made by any nonparty who is at least 18 years old.
Timing
Unless service is made in a foreign country, the summons and complaint generally must be served within 90 days after filing the complaint.
Service on a corporation
Pursuant to the Civil Rules, service on a U.S. corporation may be effected either by:
(1) Delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process; or
(2) By following state law in the state where the district court is located or where service is made.
Service on the United States
A plaintiff in a civil suit against the United States must serve:
- The U.S. Attorney General with a copy of the summons and the complaint, by registered or certified mail.; and
- The U.S. attorney for the district in which the action has been filed.
Even if a plaintiff is pursuing an action against a U.S. officer or employer in her individual capacity:
- the plaintiff is required to also serve process on the United States
- if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.