Chapter 2: Service of Process and Venue Flashcards
Time period for service
NC: Must be made w/in 60 days after the clerk issues the summons (formal process that requires D to respond). Under Federal Rule, 90 days as of 12/1/2015, prior rule 120 days.
Service of process begins the 30 day time period the D has to file a responsive pleading w/ the court.
NC: Alias or pluries summons
If D in civil action isn’t served w/in 60 days the action may be continued by an endorsement by the clerk; or A&P summons.
Must be secured w/in 90- days of the original summons or last extension.
If D served outside U.S. the first endorsement may be made any time w/in 2 years after the issuance of the original summons, and subsequent endorsements may thereafter be made at least every 2 years.
What if no service is made & no extension?
Action is discontinued. The action may be revived by A&P or endorsement, but the action is deemed to have commenced on the date of the issuance or endorsement.
Who can serve process in NC?
Sheriff in county where service is to be made or some other person authorized by law.
If summons is returned unexecuted, it may be served by anyone who is at least 21, not a party to the action, and not related by blood or marriage to a party to the action or upon whom service is made.
Who can serve outside the state?
Anyone who is not a party and at least 21 or anyone duly authorized to serve a summons by law of the place where service is to be made.
Methods of service (federal)
Personally
At D’s usual place of abode w/ person of suitable age/discretion who lives there
D’s agent
NC service on individuals
Delivering copy of S&C to D;
Leaving S&C at D’s home or usual place of abode w/ person of suitable age and discretion that resides there;
Delivering S&C to agent of D that is authorized by D or law to be served
Mail S&C by registered or certified mail, return receipt requested, addressed to the arty to be served, delivering to the addresee;
Depositing S&C w/ designated delivery service, addressed to the party to be served, delivering to the addressee, adn obtaining a delivery receipt or
Mailing a copy of S&C by signature confirmation as provided by USPS, addressed to party to be served, adn delivering to addressee.
When D is a minor or incompetent, must be served on minor and parent or guardian.
Service on entities
Corp: agent, director, managing agent
Partnership: a general partner
Unincorporated association: officer, director, managing agent or member of the governing body.
Delivery to person above; registered/cert mail to person above; leaving w/ person apparently in charge of office of one of the persons named above, or depositing it w/ designated delivery service addressed to person above.
Federal: officer or agent following state law
Service on non-resident motorists
Deliver a copy to commissioner of motor vehicles, $10 fee, and mailing of copy by certified or registered mail, return receipt requested.
Service by publication on a party that can’t otherwise b served
NC general venue rule
A D must raise improper venue by motion to dismiss or answer, or the objection will be waived (same for PJ)
NC: an action must be brought in county in which Ps or D’s or any of them reside at the commencement of the suit, or if none of the D’s reside in state, then in the county where any P resides.
NC venue: none of the parties reside w/in NC
Venue is proper in any county P designates
NC Residency for NC corp, limited partnership, LLC, or registered LLP
County in which the principal office is located; or maintains a place of business.
NC Civil action for property - venue
Venue lies in the county where relief sought when recovery of the property is the primary relief sought
Transfer of venue NC
The court may change the venue if the county in which suit was brought is not proper, or the convenience of witnesses and ends of justice would be promoted by change
Generally an order granting a change of venue is interlocutory and not immediately appealable. However, an order denying a motion for change of venue as of right (based on statute) is because it affects a substantial right.
Change of venue in federal court when original venue was proper
When original venue is proper. G/R transfer to any dist where case might have been heard or where parties consent.
DJ: must apply law from previous ct
FQ: new dist ct in another appellate circ. will apply fed law as interpreted by its court of appeals.
