Service of Process Flashcards
In regards to service of process, what is the basic idea? What is service of process referred to in GDC? Circuit court?
To provide notice, serve D with “summons” and a copy of the complaint. Remember, the summons tells D he’s been sued, what to do to avoid default.
In GDC, a summons is called a warrant or a notice of motion for judgment.
In Circuit Court, its a summons.
Who may serve process?
By when must service of process be completed?
Process may be served by an adult civilian who is not interested in the case or by the sheriff or deputy (fee involved). An officer may serve in her city or country and in contiguous localities.
Within one year after filing of the suit.
What is the proper way to serve an individual?
Three ways to effect this (descending order rule):
- **Personal (or “Actual”) Service. ** Deliver process directly to D. Must be tried first.
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- **Substituted Service. ** Must be D’s usual abode; must serve a member of D’s family who is at least 16 years old and is not a guest or temporary sojourner; and must tell the person the purpose of the document.
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- Posted Service. If personal and substituted service are not possible, post a copy of process on D’s front door, and at least 10 days before taking default judgment, mail process to D and certify to clerk that mailing took place. In Circuit Court, when P mails the copy of the pleading to D, she should also state that if D defaults, after 10 days from the mailing, P may seek default judgment.
What is the Curing Statute? When does the statute never apply?
The Curing Statute provides that service is okay if the D actually and timely received it.
Curing statute never applies in divorce or annulment proceedings.
NOTE: When using the curing statute argument, first state the rule, why the service of process was not okay, and then explain exception.
Can a Plaintiff request that a Defendent waive formal service of process?
P can request by mail that D waive formal service of process. If the D refuses to waive service without good cause, the court may impose costs of service on him.
If the D waives service, he has 60 days (if in state) or 90 days (if out of state) in which to file the required responsive pleadings.
Is there immunity for one summoned to appear befor a grand jury or in a criminal case?
There is immunity for one summoned to appear before the grand jury or in a criminal case; even then, court can deny immunity if would thwart efficient administration of justice.
What is the process for serving an individual under the Long Arm Statute?
Service Under the Long Arm Statute.
- P makes an affidavit that must set forth: (a) D is nonresident (or cannot be found with due diligence); and (b) D’s last-known address.
- File the affidavit in court
- The sheriff or P gives process and copy of the affidavit to the secretary of the Commonwealth.
- The Secretary of the Commonwealth mails the process to the D by certified mail.
- After the secretary of the Commonwealth mails process to D, the Secretary sends a certificate of mailing to the clerk of the court and service is complete when it is received by the clerk OR Instead of having the Secretary of the Commonwealth mail the process, P can arrange for personal service out of state by one authorized to serve process there.
When is service considered timely? If service of process is consider untimely, what must happen before the case is dismissed for untimely service?
If P files suit against D one day before the statute of limitations expires. Service is effected a week later. P is not time barred. The case is commenced by filing, which tolls the statute of limitations.
BUT, P must serve process within 12 months of filing or else he cannot win judgment (unless shows due diligence). The court must hold a hearing, and give P 30 days’ notice, before dismissing on this ground.
What is the return (“Proof of Service”)? What must it include? What are the benefits of having a sheriff or deputy do the serving? When must the proof of service be filed?
The Return (“Proof of Service”). This is a report to the court by the officer who served process, relating what she did to effect service.
Must state the reason for failing to serve personally. Because it is by an officer, it’s prima facie evidence that what’s stated is true.
Such a report can be made by affidavit by a civilian; if so, it is merely evidence of service (not prima facie evidence).
May matter in a default, where you’d need to prove that D was served. That’s why folks have the sheriff or deputy do the serving.
Must be filed within 72 hours of serving process. Proof of service is signed by the person making service, and indicates the jurisdiction and state where accepted.
