Notice & Service of Process

Question 1

As a constitutional matter, notice must be:

Answer 1

reasonably calculated under all of the circumstances to apprise the interested parties of the action.

Question 2

“Notice” occurs through…

Answer 2

service of process.

Question 3

Service of process consists of 2 documents:

Answer 3

1. Summons;
2. Copy of Complaint.

Question 4

A summons is…

Answer 4

the formal court order and notice of suit which tells the Defendant when to respond.

Question 5

Who can serve process, according to Federal Rules?

Answer 5

Any person who is at least 18 and not a party to the action.

Question 6

HYPO: Plaintiff files a lawsuit against coporation. Plaintiff drives to the corporation’s headquarters and hands the process to the corporation’s president. Is this OK?

Answer 6

NO – Plaintiff is a party to the suit.

Question 7

When must process be served?

Answer 7

Within 90 days of the filing of the complaint.

Question 8

Can the period with which one has to file service by be extended by the court?

Answer 8

Yes, by a showing of good cause.

Question 9

How is process served on an Individual?

Answer 9

1. Personal Service (handed to D);
2. Substituted Service (service at D’s usual place of abode on someone of suitable age who also resides there);
3. Service on an agent (as long as recieving service is within the scope of that agency);
4. State Law methods (the law of the state where the federal court sits or the law of the state where service is to be made).

No hierarchy in Federal Court.

Question 10

HYPO: Process is left to Defendant’s butler at Defendant’s summer home. Is this OK?

Answer 10

If it’s summertime, yes; (and if the butler resides there).

Question 11

HYPO: Plaintiff sues Defendant and hires a non-party to make the service. The process server serves the summons and complaint on the Defendant’s personal assistant at work. OK?

Answer 11

Only if the personal assistant is deemed the Defendant’s agent for this purpose.

Question 12

How to serve process on a Business Oganization:

Answer 12

1. Deliver process to an officer or agent;
2. State law method.

Question 13

(True/False): A Defendant can waive service of process.

Answer 13

True.

Question 14

How does a Plaintiff request a Defendant to waive Service of Process?

Answer 14

The Plaintiff mails the Defendant a notice and a request to waive service. The Plaintiff must include a copy of the complaint and two copies of a waiver form along with a prepaid means of returning the waiver form.

Question 15

When must a Defendant execute and mail a waiver of service of process?

Answer 15

Within 30 days.

Question 16

Does a Defendant waiving service of process waive any defenses?

Answer 16

No. No defenses will be waived by waiving service.

Question 17

When is a waiver for service of process effective?

Answer 17

When the Plaintiff files the signed waiver form in the court.

Question 18

If one waives service of process, the date of service will be construed as:

Answer 18

The date the Plaintiff filed the waiver with the court.

Question 19

If the Defendant does not have good cause for not waiving the service of process, the penalty will be:

Answer 19

The Defendant will have to pay the cost of service.

Question 20

How is service is proved?

Answer 20

The process server files a report with the court. If the process server is a civilian, it must be through an affidavit.

Question 21

Does the failure to file the service report effect the validity of the service?

Answer 21

No, not if the service was properly done.

Question 22

If a Defendant goes out of state to appear as a party, witness, or attorney, can they be served with process for another civil case while there?

Answer 22

No, the Defendant will be immune from process while appearing in another case.