SOL/Service of Process Flashcards
SOL Time limits
Defamation/Libel = 1 year
PI/Fraud= 2 years
Oral K, equitable estoppel, unjust enrichment= 3 years
UCC art 2 K= 4 years
Written non Art 2ks= 5 years
Injury to property= 5 years
The SOL begins to run when
The injury occurs. However, in Med Mal/Fraud claims the SOL is 1 year after discovery
The SOL is tolled when
The suit is filed, or if there is obstruction by the D such as a filing for BK, hiding the injury, or taking curative actions. In that case the suit will be tolled for the period of time P reasonably believed something would be improved
When a minor is injured the SOL is
Tolled until the minor becomes 18 or becomes emancipated
When a minor is injured in a med mal case
They have an ordinary 2 year SOL. However, if the minor is younger than 8, then she has until age 10 to file suit.
A P who nonsuits her case has
6 months to refile or the remainder of the SOL, whichever is longer
If an expiration of SOL falls on a date in which the court is closed
The SOL is extended to the next business day
Service of Process contains a
summons and a copy of the complaint
Service of Process can be served by
1) A sheriff or deputy of the jurisdiction/adjoining jurisdiction where the person to be served is located or in; or
2) A disinterested person who is not a party or family member who is at least 18
P must serve D within
1 year of the complaint. If P fails to serve process within that time, the court will dismiss the lawsuit with prejudice unless P can show that she exercised due diligence in attempting to complete the service
For residents of the State, Service can be done by
1) Personal service- Actual physical delivery to the D
2) Substituted service- actual physical to a family member who is at least 16 and resides at D’s home
3) posting- servicer posts process on the front door of D’s usual place of abode and mails a copy to that address (note, must be mailed to support a default judgment at least 10 days prior to judgment
For entities (corps, LLC, partnerships, Service can be by
1) Service on officer, director or registered agent
2) partnerships- GP made on general partner, LP service made on registered agent
3) if no registered agent, service can be made on any agent of the entity
After serving process, the server has
72 hours to file proof of service with the court
Waiver of Services
P can send the D a request for Waiver and D is obligated to minimize the cost of service and accept the waiver
The D refuses to waive service
He is responsible for cost of service
Good Process but bad service
As long as D received the service within 1 year after filing the complaint and the server acted in good faith, service will be sufficient even if the service rules were technically broken
D must respond to service
within 21 days if was served; or
within 60 days (90 if out of state) to respond
A motion to quash service of process
challenges the court’s pJ
Motion to Dismiss for failure to serve process
argues that service was not served correctly (remember good process but bad service rule)
Motion Cravying oyer
motion to produce essential documents
Motion for a bill of particulars
Seeks court order compelling a party to elaborate any pleading that does not provide adequate notice of a claim or defense
Demurrer
Failure to state a claim upon which relief can be granted
Plea in Bar
Used when D has a complete Defense to one of P’s claims (allows D to put on evidence of affirmative defenses)
After a denial of a supplemental motion D has
21 days to file an answer. (its 14 in fed court) Affirmative defense must be raised on the 1st defensive pleading or its waived
