Venue and Service of Process Flashcards
What are a plaintiff’s two choices for venue?
- If all D’s reside in the same state - can choose any district any one of them lives in.
- Any district where a substantial part of the claim arose.
How do you know where a defendant resides?
Natural person = domicile,
Business association = district where they’re subject to PJ for the case.
When can a case be transferred from one venue to another?
It can only be transferred to a venue where the case could have been brought (venue that has proper PJ over the defendant).
What can the court consider in transferring from a proper venue to another venue?
- convenience of the parties,
- convenience of the witnesses,
- the interests of justice
What can the court consider in transferring from an improper venue to another venue?
The interests of justice, or it can dismiss the case and require the plaintiff to refile in a place with proper venue.
What favors does the court use in determining the “interests of justice”?
Public and private factors that show the other venue is the case’s “center of gravity.”
E.g. what law applies, what community the jury should come from, where the witnesses are, where the evidence is, etc.
What is process?
The summons and complaint.
When must process be served to be proper?
Within 120 days of filing the suit, or else it will be dismissed without prejudice - unless P can show good cause for the delay.
Who can serve federal process?
A non-party age 18 or older.
What methods can be used to serve federal process?
Any method accepted by the FRCP, the laws of the state the court is in, or the laws of the state in which the person is being served.
What are the methods of service provided by the FRCP?
- personal service on D anywhere in the forum state,
- substituted service,
- service on D’s agent,
- waiver by mail.
How does substituted service work?
Process server can serve someone of suitable age and discretion at D’s usual abode if that person resides there.
How does waiver by mail work?
D mails (by regular mail) a copy of the complaint and two copies of a waiver form with a pre-paid means of returning the form. D has 30 days to return it or else D will pay P’s costs to serve traditionally.
Has D waived personal jurisdiction challenges by returning a waiver form?
No.
When can process be served outside NYS?
When state law would allow it (e.g. long-arm jurisdiction).
