Notice Bar Prep Flashcards
(22 cards)
Notice:
(1) Summons
(2) Copy of the complaint
This is also known as service of process
Who can serve process?
(1) Non-party
(2) At least 18 years old
When must process be served?
Within 90 days of filing the complaint if defendant is to be served in the U.S.*
*may be extended for good cause
How is process served?
(1) Personal Service
(2) Substituted Service
Personal Service
Process is given to the defendant personally anywhere
Substituted Process
-Serving a substitute for the defendant
-Requirements (service can be done only)
(1) at the defendant’s usual place of abode
(2) with someone of a suitable age and discretion
(3) who resides there
T or F: Substituted service cannot be used if personal service is possible
False, substituted service may be used even if personal service is possible
T or F: The defendant must not reside there every day of the year for it to qualify as her usual place of abode
True, but on a common sense determination
ex: Process is left at defendant’s summer home. Substituted process would be at the right location if it were summer time.
T or F: The person on whom service is made must be related to the defendant
False, the person must reside there
Service on Agent
Ok as long as its within scope of agency (ex: agent appointed by contract)
State Law Service Methods
Methods of serving process are permitted by the law of the state
(1) where the federal court sits or
(2) where service is made
ex: service of process by mail
Serving on a business or organization in the U.S.
(1) Delivering to an officer or a managing or general agent a copy of the summons and complaint; OR
(2) using a method permitted by the state (where the court sits or where service is to be made)
Serving on a minor or incompetent person
May be made only by a method permitted by the law of the state in which service is to be made
Service on parties in a foreign country
See pages 23-24 of Course Companion, I’m too lazy to write this shit out
Waiver of Service of Process (Request by Plaintiff)
Plaintiff mails to defendant:
- Notice and request to waive service
-Copy of the complaint
-Two copies of the waiver form
WITH a prepaid method of return
How long does defendant have to mail waiver form back?
- 30 days if in U.S.
- 60 days if defendant is outside U.S.
Effect of Waiver on Other Defenses
Waiver of service of process does not waive any defenses, like lack of PJ
When is waiver effective?
When the plaintiff files the returned waiver form in court
We act as though defendant was served on the day that the plaintiff filed the waiver form with the court
Penalty for failing to waive service
If the defendant did not have good cause for failing to return the waiver form, defendant must pay the cost of service
Proving service of process
Process server files report with the court detailing how service was made
Civilian server = affidavit
Failure to file report does not affect validity of service
Geographic reach of service of process
(1) within state in which federal court sits; or
(2) outside that state if state law allows
Immunity
If defendant goes to state X to appear as a party, witness, or attorney in a different civil case in state X, defendant cannot be served with process for a civil case in fed court in state X
