Notice/Service of Process

Question 1

Notice Basics

Answer 1

In addition to PJ, D is entitled to notice she has been sued
- Notice includes (1) summons & (2) copy of complaint
- Anyone who is over 18 & not a party to action may serve process
- Process must be served w/n 90 days of filing complaint ( or else case will be dismissed w/o prejudice or judge will extend time).
- May extend for good cause.

Question 2

Personal service

Answer 2

Process is given to D personally anywhere

Question 3

Substituted service

Answer 3

Can be done only (1) at D’s usually place of abode, (2) on someone of suitable age & discretion, (3) who resides there.
- D does not need to reside there everyday of the year for it to qualify as her usual place of abode.
- In Fed ct, SS may be used even if PS is possible.

Question 4

Service on agent

Answer 4

Process can be given to D’s agent if receiving service is in scope of agency. (ex. when agent is appointed by K)
- Can be used even if PS is possible

Question 5

State law methods

Answer 5

Methods for serving process that are permitted by state law
(1) where fed ct sits or
(2) where service is made (ex. some states allow service by mail)

Question 6

Service on a Business/Organization in the U.S.

Answer 6

May be served by:
- Delivering to officer/agent copy of summons & complaint; or
- Using method permitted by state law (1) where fed ct sits or (2) where service is to be made

Question 7

On a minor/incompetent in the U.S

Answer 7

Method permitted by state law where service is to be made

Question 8

Waiver of SOP

Answer 8

To request waiver, P mails D notice & request to waive SOP
- P must include copy of complaint & 2 copies of waiver form, w/ prepaid means of returning form
- IF D executes & mails waiver to P w/n 30 days (60 if D is outside U.S.), SOP is waived

Question 9

Effect of Waiver on other defenses

Answer 9

D who waives SOP does not waive any defenses like lack of PJ

Question 10

When waiver is effective

Answer 10

If D signs & mails waiver back to P, waiver is effective when P files it in ct

Question 11

Penalty for failing to waive service

Answer 11

If D fails to return waiver form, & P must serve D personally/SS, D will have to pay for cost of service if he did not have good cause for this failure

Question 12

Proving SOP

Answer 12

Unless service is waived, process server files a report with the ct detailing how service was made
- If server was a civilian, report is an affidavit
- Failure to file this report does not affect validity of service

Question 13

Geographic reach of SOP

Answer 13

Process may be served w/in the state in which fed ct sits
- May be served outside that state if state law allows

Question 14

Immunity

Answer 14

• If D goes to state X to appear as party, witness, or attorney in different civil case in state X, D cannot be served for civil case in fed ct in state X. D is immune from SOP.

Question 15

Service of other documents

Answer 15

• An answer, other pleadings, motions, & discovery do not need summons to serve formally
• Served by delivering/mailing docs to party’s attorney/ pro se party
• If parties agree, can be served by email
• If by mail, receiving party has 30 days to respond, & 3 days are added b/c they are mailed