Notice/Service of Process Flashcards
(24 cards)
What does service of process consist of? (2 Documents)
(1) Summons - formal court notice of suit and timing for response
(2) Copy of the complaint
Constitutionality of notice
Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the action.
Process definition
Delivering a summons and copy of the complaint to the defendant.
Who signs the summons form?
Plaintiff fills out the form summons, and the clerk of the court signs, seals, and issues it.
Who can serve process?
Any person who is (1) at least 18 years old and (2) not a party to the action.
When is process served?
If D is in the USA, service must take place within 90 days of the filing of the complaint (unless an extension is granted for good cause)
How is process served? (4 options)
(1) Personal service
(2) Substituted service
(3) Service on agent
(4) State law methods
Service process: (1) Personal Service
Process is given to the defendant personally anywhere
Service Process: (2) Substituted Service
Serving a substitute for D. Can only be done (1) at D’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there.
Substituted service: Usual place of abode
A defendant does not have to reside in a place for every day of the year for it to qualify as their usual place of abode. For example, if D lives in a summer home during the summer and you service process there during the summer, that would be acceptable. It would not be if you tried it in the winter, though.
Service Process: (3) Service on Agent
D’s agent can be acceptably served if receiving service is within the scope of their agency. Ex - when agent is appointed by contract.
Substituted and agent service where personal service is possible
This is fine - even if personal service is available, in federal court, substituted and agent service are acceptable.
Service process: (4) State law methods
Service is permitted by the law of the state (1) where the federal court sits or (2) where service is made. Ex - some states allow service by mail.
Service on a business or organization
Business or organization may be served by:
(1) Delivering to an officer (for example, president, treasurer) or a managing or general agent
(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 US
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
Can use a method allowed by international agreement.
If there is no such agreement to use, options are:
(1) As directed by US court
(2) Method allowed by foreign country’s law
(3) Method directed by foreign official in response to a letter of request in American court
(4) Personal service in foreign country if permitted by foreign country’s law
(5) Mail sent by the clerk of the American court, requiring sign receipt, if permitted by foreign country’s law
Waiver of service of process
D can waive service.
P must mail D a notice and request to waive service. P must include a copy of complaint and two copies of a waiver form with prepaid means of returning form. D must waive within 30 days (or 60 if outside US).
Effect of waiver on defenses
Waiver of service of process does not waive any defenses, like lack of PJ.
When waiver is effective
Waive is effective when D signs and mails waiver to P, and P files waiver with the court.
Penalty for failure to waive service
If D did not have good cause for failing to return waiver form, D must pay the costs of service.
Proving service of process
Process server files a report with court detailing how service was made. If server is a civilian, report is by affidavit. Failure to file report does not affect validity of service.
Geographic reach of service
Process may be served within the state in which the federal court sits. May be served outside that state if state law allows.
Immunity (Service)
If D goes to State X to appear as a party, witness, or attorney in a different civil case in State X, D cannot be served with process for a civil case in federal court in State X.
Mail and email service of process
Email service is possible if both parties agree. When process is mailed, receiving party generally has 30 days in which to respond to requests, but three days are added for mailed service.
