Summons Flashcards
May a court permit a summons to be amended?
Yes
Issuance of a summons
On or after filing a complaint, the P may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the P for service on the D. A summons or copy must be issued for each D to be served
How must a summons be served?
A summons must be served with a copy of the complaint. The P is responsible for having the summons and complaint served within 120 days after the complaint is filed and must furnish the necessary copies to the person who makes service
Who may serve a summons?
Anyone who is at least 18 and not a party in the litigation
May a P request that service be made by a US marshal or deputy or someone appointed by court?
Yes
Who may a P send a waiver request to?
An individual, corporation, or association that is subject to service under Rule 4 (e),(f), or (g) (individual in US judicial district, individual in foreign country, corporation/partnership) has a duty to avoid unnecessary expenses of serving the summons. The P may notify such a D that an action has been commenced and request that the D waive service of summons.
What are the contents of a summons?
1) A summons must
(a) name the court and parties
(b) be directed to the D
(c) state the name and address of the P’s attorney or if unrepresented, of the P
(d) state the time within which the D must appear and defend
(e) notify the D that a failure to appear & defend will result in a default judgment against the D for the relief demanded in the complaint
(f) signed by the clerk and
(g) bear the court’s seal
What are the requirements of notice and request for waiving service?
A) must be in writing and addressed to:
(i) individual D
(ii) or for a D who is a corporation, partnership or association, to their officer or managing/general agent, or any other agent authorized by appointment or by law to receive service of process
B) must name the court where the complaint was filed
C) accompanied by a copy of the complaint, two copies of a waiver form, and prepaid means for returning the form
D) inform the D consequences of waiving and not waiving service
E) state the date when request is sent
F) give the D a reasonable time of at least 30 days after the request was sent- or at least 60 days if sent to the D outside any judicial district of the US- to return the waiver
G) be sent by first-class mail or other reliable means
Who can the P NOT request a waiver of summons from?
- A minor or incompetent person
- The US and its agencies, corporations, officers or employees
- Foreign, State or Local Gov
What happens if the D fails to waive?
If a D with the US fails to waive (when requested by P in US), without a good cause, the court must impose on the D:
- the expenses later incurred in making service
- the reasonable expenses, including attorney fees of any motion required to collect those service expenses
Note: both D and P must be located within the US
After a waiver has been returned by D, how much time does D have to answer a complaint?
A D who, before being served with process, timely returns a waiver, does not need to answer a complain until 60 days after the request was sent- or until 90 days after it was sent to the D outside any judicial district of the US
Is proof of service required once a P files a waiver?
No, these rules apply as if a summons and complaint had been served at the time of filing the waiver
Does waiving summons waive objection to personal jurisdiction or venue?
No
