Notice & Service of Process Flashcards
(11 cards)
Notice
must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.” In a regular lawsuit, notice consists of two documents: (1) a summons, which is formal court notice of suit and the timing for response; and (2) a copy of the complaint. Together, these two documents are sometimes called “process.”
Who can Serve Process
- At least 18 Years old
- Nonparty to the case
When Must Process be Served
Within 90 days after filing complaint
* Can be extended for good cause
How process is served on an Individual*
- Personal service (in-hand delivery)
- Substituted service at D’s usual abode on someone of suitable age and disretion who resides there (may be used even if personal service is possible)
- Service on Agent (can be used even if personal service is possible)
- State Law Methods (Can use state laws for service in federal court)
Service on Business or Organization*
- On Offier or Agent
- State Law Methods
Service on Minor or Incompetent Person
Use state law method where service is made
Service on Parties in a Foreign Country
A method allowed by international agreement (for example, the Hague Convention) may be used. Or, if there’s no such agreement on point, the options (subject to the constitutional requirement that the method must be reasonably calculated to give notice) are:
* 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 (letter rogatory) from the American court; or
* Personal service in the foreign country (unless prohibited by its law); or
* Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).
How Service of Process is Waived
- P Mailes to D: (1) Copy of Complaint, (2) 2 copies of Waiver Form, (3) Prepaid return envelope
- D must return executed form with 30 days (60 days if outside US)
- Can be used for Individuals & Enities
- Defendant does not waive any defenses by waiving service
- Waiver is effective the day P files waiver in court (Will act as if D was served with process on this day)
- Defendant pays for service as penalty for not waiving (unless good cause)
Proof of Service
Process server files report with court
* If server is a civilian report is an affidavit (statement under oath)
* Failure to file does not affect validity
Immunity
If the defendant goes to State X to appear as a party, witness, or attorney in a different civil case in State X, the defendant cannot be served with process for a civil case in federal court in State X. The defendant is immune from service of process.
Service of other documents
Other documents, such as an answer, other pleadings, motions, and discovery, are “served,” but we don’t need a summons or to do it so formally. We **serve these documents by delivering or mailing **the document to the party’s attorney or to a pro se party, that is, someone who is proceeding without a lawyer.
* Can use email if the other party agrees (the receiving party generally has 30 days in which to respond to the requests, but here three days are added to the period because they are mailed.)
