Notice/Service of Process Flashcards
(15 cards)
Constitutional matter, the defendant is entitled to notice. Notice consists of …
(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?
Any person who is at least 18 years old and not a party to the action may serve process.
When must process be served?
If the defendant is to be served within the United States, service must take place within 90 days of the filing of the complaint. This period may be extended for good cause.
How is process served?
Individuals in the US:
(1) personal service: process is given to the defendant personally anywhere; OR
(2) Substituted Service: at the defendant’s usual place of abode; with someone of suitable age and discretion; who resides there. (fed. court, sub serv may be used even if personal service is possible)
*Residence doesn’t have to be permanent home, can be a secondhome if reasonable to believe defendant is there.
Service on Agent
Process can be delivered to the defendant’s agent. This is OK if receiving service is in scope of agency.
State Law Methods of Service
In addition, methods for serving process that are permitted by the law of the state (1) where the federal court sits or (2) where service is made are permitted.
Service on Business or Organization within the US
Delivering to an officer (EX; president, treasurer) or a managing or general agent a copy of the summons and of the complaint, OR
Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made.
Service on a minor or incompetent person in the US
Service 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
A method allowed by international agreement may be used.
OR, if there’s no such agreement other 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).
Waiver of Service of Process (individuals & Entities)
A defendant can waive service of process by mailing the defendant a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form
If the defendant executes and mails the waiver form to the plaintiff within 30 days (60 days if the defendant is outside the U.S.), they waives formal service of process.
When is waiver by defendant effective?
If the defendant signs and mails the waiver form back to the plaintiff, the plaintiff files the waiver in court; the waiver is effective then.
AKA for timing purposes, we act as though the defendant was served with process on the day that the plaintiff filed the waiver form with the court.
Penalty for Failing to Waive Service
If the defendant fails to return the waiver form, the plaintiff then serves defendant personally or by substituted service.
If the defendant did not have good cause for failing to return the waiver form, the defendant must pay the costs of service.
Geographic Reach of Service of Process
Process may be served within the state in which the federal court sits. It may be served outside that state if state law allows.
Service Immunity (Excpetion to tag)
Defendant cannot be served in a state when they go to the state to appear as a party, witness, or attorney in a different civil case, the defendant is immune from from service of process.
Service of other Documents
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.
Can be done by email if the parties agree.
Service deemed complete when they are mailed, recieving party will have 30 days to respond to requests (add three days if snail mailed)
