Forum Selection: Notice/Service of Process!!! Flashcards
Often Tested (18 cards)
Notice and Service of Process General Definition
Notice consists of 2 documents: 1 - a summons, which is formal court notice of suit and the timing for response; 2 - a copy of the complaint. Together called “process”
Who can serve process?
Any person who is at least 18 years old and not party to the action
When must process be served?
Within 90 days of the complaint’s filing; may be extended for good cause
How is process served on an individual within the US? !!!!
Personal service, substituted service, service on an agent, state law methods
Personal Service of an individual in the US
Process is given to the D personally anywhere
Substituted Service of an individual in the US
Can be done only: 1 - at the D’s usual place of abode; 2 - with someone of suitable age and discretion; and 3 - who resides there
Service on Agent of an individual in the US
Delivered to the D’s agent, must have receiving service in scope of agency like appointed by contract
State law methods of an individual in the US
Methods permitted by the law of the state: 1 - where the federal court sits or 2 - where service is made are permitted (ex: service of process by mail)
How is process served on a business or organization in the US? !!!!
Delivering to an officer, managing or general agent OR using a method permitted by the state
How is process served on a minor or incompetent person within the US? !!!!
Only by a method permitted by the law of the state in which service is to be made
How is process served on parties in a foreign country? !!!!
By international agreement or if no such agreement: as directed by the American court; or method allowed by the foreign country’s law; or method directed by foreign official in response to a letter of request from the American court; or personal service in the foreign country; or mail sent by the clerk of the American court, requiring signed receipt
Waiver of Service of Process
D must execute and mail the waiver form to the P within 30 days (or 60 days if outside the US) then has waived formal service of process
Effect of waiver on other defenses
Does not waive any defenses
When waiver is effective
When the P files the waiver in court - act as though the D was served with process on the day that the P filed the waiver form with the court
Penalty for failing to waive service
D must pay the costs of service if no good cause for failing to return the waiver form
Proving service of process
Unless waived, process server files a report with the court detailing how service was made. If civilian, report is by affidavit. Failure to file this report does not affect the validity of service
Geographic reach of service of process
May be served within the state in which the federal court sits or outside that state if state law allows it
Service of other documents
Other documents may be delivered, mailed, or sent by email. Service is deemed complete when they are mailed
