Notice/Service of Process Flashcards
What does notice require?
(1) constitutional notice
- notice reasonably calculated under all the circumstances to apprise interested parties of the action
———–
(2) service of process
- summons [formal notice of suit and timing for response]
- copy of the complaint
- how to comply with FRCP: P fills out form summons for the clerk to sign, seal, and issue]
who can serve process?
any person who is at least 18 and not a party to the action
need not be appointed by the court
when must process be served
if the D is served in the US — within 90 days of the filing of the complaint, but this may be extended for good cause
how is process to be served …..
on an individual within the US
on a business or organization in the US
on a minor or incompetent person in the US
on parties in a foreign country
SERVICE ON AN INDIVIDUAL IN THE US
[no hierarchy, all are permissible]
(1) personal service
process is given to the D personally anywhere
or
(2) substituted service
Serving someone of “suitable age and discretion” who resides at the defendant’s “usual place of abode” (not required to be related to D and need not be D’s only place of abode - common sense determination) AT “D’s usual place of abode”
Ex: Process is left with Defendant’s butler at Defendant’s summer home. Is this OK? Yes if it is summertime because it would be his usual place of abode in summer (but not winter!). Butler lives there, so this is ok. NOT babysitter
or
(3) service on agent
Agent’s receiving process must be in the scope of his agency [ex: contractual agent]
or
(4) some method of serving process that is permitted by the law of the state where the federal court sigs or where service is made [Ex: mail]
SERVICE ON A BUSINESS OR ORG IN THE US
(1) delivering a copy of the summons and the complaint to an officer or managing or general agent
[officer = president, treasurer, etc.]
or
(2) using a method permitted by the state (a) where the federal court sits or (b) where service is to be made
SERVICE ON A MINOR OR INCOMPETENT PERSON IN THE US
Permissible methods of service are only those authorized by the law of the state in which service is to be made
SERVICE ON PARTIES IN A FOREIGN COUNTRY
(1) a method allowed by international agreement (like The Hague Convention)
OR, if no agreement on point:
(2) As directed by the American court; or
(3) Method allowed by the foreign country’s law; or
(4) Method directed by foreign official in response to a letter of re- quest (letter rogatory) from the American court; or
(5) Personal service in the foreign country (unless prohibited by its law);
or
(6) Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).
how can a D waive service of process? what is the effect of waiver? when is waiver effective? what is the penalty for failing to waive service?
HOW
P requests wavier from D by mailing him a notice and request to waive service. P must include:
- copy of complaint
- two copies of waiver form
- prepaid means of returning form [self-addressed, stamped envelope]
D’s part:
- D has 30 days to execute and mail waiver form to P [or 60 if D outside US]
-
EFFECT OF WAIVER
D does not waive any defenses, like lack of PJ
-
WHEN EFFECTIVE
when P files the signed waiver in court
= D has been served on the day P filed waiver with the court
-
PENALTY FOR FAILING TO WAIVE
if D did not have good cause for failing to return waiver form, D must pay costs of service
how to prove service of process?
the process server files a report with the court detailing how service was made.
If the server was a civilian, the report is by affidavit (sworn statement, under oath).
The failure to file this report does not affect the validity of service.
what is the geographic reach of service of process?
Process may be served within the state in which the federal court sits OR outside that state if state law allows
when is D immune from service of process
when D goes to the state in which P files the case for a different civil case to appear as a party, witness, or attorney
do other documents [besides “process”] need to be served?
how is their service performed?
when is service complete?
how long does receiving party get to respond?
Answer, pleadings, motions, discovery are “served” by delivering or mailing the document to party’s attorney or to pro se party
email is ok if parties agree
service is complete when documents are mailed (or otherwise sent) [mailbox rule]
typically, a receiving party has 30 days to respond, but gets 3 extra days if the documents are mailed to receiving party
