Service of process

Question 1

Bulge provision

Answer 1

A federal court has personal jurisdiction over a party who:

(1) served within a U.S. judicial district and
(2) not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service.

This rule applies to third-party defendants joined by impleader, even if the service is outside of the state and beyond its long-arm statute jurisdiction.

Question 2

Nationwide service of process

Answer 2

A federal court only has national personal jurisdiction when authorized by federal statute, such as for federal statutory interpleader actions.

Question 3

Proper service

Answer 3

Service is proper if pursuant to the federal rules.

Under the federal rules, service may be made by:

(a) delivering the summons and complaint:

• to an individual persoanlly; or
• by leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(b) following state law for serving a summons in an action brought in courts of general jurisdiction:

• in the state where the district court is located—i.e., the forum state; or
• in the state where service is made.

Question 4

Proof of service of process

Answer 4

Unless formal service is waived, a process server must submit proof of service to the court.

Failure to make proof of service, however, does not affect validity of the service.

The federal rules do not specify a time frame for making proof of service.

Question 5

Due process requirements

Answer 5

Due process is met if the notice is reasonably calculated, under all the circumstances:

(1) to apprise interested parties of the pendency of an action; and
(2) afford them an opportunity to present their objections.

If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through:

(1) in-person delivery,
(2) registered mail,
(3) return receipt requested, or

some other means likely to notify the particular individual is required.

Question 6

Voluntary presence

Answer 6

If a defendant is voluntarily present in the forum state and is served with process while there, then the state will generally have personal jurisdiction over the defendant.

Question 7

Voluntary presence: “passing through” exception

Answer 7

When the defendant is merely “passing through” the forum state to attend other judiciary proceedings, she is not deemed voluntarily present for purposes of service.

Question 8

Waiver of service

Answer 8

If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

Question 9

Process server

Answer 9

Service of the complaint and summons may be made by any nonparty who is at least 18 years old.

Question 10

Timing

Answer 10

Unless service is made in a foreign country, the summons and complaint generally must be served within 90 days after filing the complaint.

Question 11

Service on a corporation

Answer 11

Pursuant to the Civil Rules, service on a U.S. corporation may be effected either by:

(1) Delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process; or
(2) By following state law in the state where the district court is located or where service is made.

Question 12

Service on the United States

Answer 12

A plaintiff in a civil suit against the United States must serve:

• The U.S. Attorney General with a copy of the summons and the complaint, by registered or certified mail.; and
• The U.S. attorney for the district in which the action has been filed.

Even if a plaintiff is pursuing an action against a U.S. officer or employer in her individual capacity:

• the plaintiff is required to also serve process on the United States
• if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.