Pleadings Flashcards
(95 cards)
How are civil actions commenced generally?
Under Rule 3, a civil action is commenced by filing a complaint with the court clerk. For the purposes of a federal diversity action, state law will apply to decide when the action commenced for the purposes of the statute of limitations. So, if a state law provides that an action is commenced by service of process on a D, rather than by filing with the court, then the state rule will control for purposes of diversity jdx.
How are time limits generally calculated?
Rule 6:
-Whenever a time period is stated in days, the period excludes the day of the triggering event, but includes every subsequent day, including weekends and holidays. If the last day is a weekend or holiday, it is extended to the very next business day.
How are time limits calculated for motions, hearings and affidavits?
Rule 6(c): a written motion and notice of a hearing must be served at least 14 days prior to the hearing, unless:
- the motion can be heard ex parte
- the Rules provide for it, or
- the court orders otherwise
An opposing affidavit must be served at least seven days before the hearing, unless otherwise ordered.
How much time is allowed for electronic and nonpaper filings?
Rule 6(d): when the Rules otherwise provide a time period for responding to a service or filing, and the service or is made by mail, leaving with the clerk, or other means consented to, three days are added to the prescribed period.
Why is service of process important?
In the absence of service of process (or waiver of service of process by the defendant, a court may ordinarily not exercise power over a party named as a defendant in a complaint.
Who must serve?
Rule 4(c): the P is responsible for serving the summons and complaint upon the defendant. Service may be made by any nonparty who is at least 18 years old.
What is the time limit for service?
Rule 4(m): the P must serve the summons and complaint within 120 days after filing the complaint.
What happens if a P does not serve within 120 days?
If P can show ‘good cause’ as to why service was not timely made, then the court must extend the timely period for an appropriate amount of time. But if there is no showing of good cause, then the court must dismiss the action without prejudice against the D or order that service be made within a specific time.
How can individuals be served if they live in the U.S.?
Service may generally be made within the state in which the federal district court sits by:
- personally serving the summons and complain on the D.
- Leaving the summons and complaint at the D’s usual place of residence with a person of suitable age and discretion who resides there; OR
- Delivering the summons and complaint to an agent appointed by the D or otherwise authorized by law to receive service.
Also: service may be made by following state law for serving summons in an action brought in a court of general jurisdiction in the state where the district court is located or where service is made.
How can individuals generally be served if they live outside the U.S.?
Rule 4(f): service may be affected in any manner, internationally agreed-upon, that is reasonably calculated to give notice.
How can individuals generally be served if they live outside of the U.S. AND there is not international agreement?
If no international agreement exists, or if an international agreement permits service by other means, then service on any competent individual outside the U.S. may be effected by:
- any method permitted by the law of the foreign country (unless prohibited by law)
- personal service of summons and complaint or by any mail that requires a signed receipt
- any other means not prohibited by international agreement, OR
- as ordered by the court
How can corporations be served in the U.S.?
Rule 4(h): service on a corporation or association in the U.S. may be performed by delivering the summons and complaints to:
- an officer
- managing agent
- general agent, OR
- agent appointed or authorized by law to receive process.
If the agent is one authorized by statute, and the statute so requires, the P must also mail a copy of the summons and complaint to the defendant.
What are the CA service of process distinctions?
- when substituted service is made in CA, the state requires a follow up mailing to the D which is not required in federal court.
- CA authorizes service by publication
- In addition to the methods of service authorized on in-state Ds, service of process on a person outside of CA may be made by first class mail requiring a return receipt so long as proper statutory and constitutional basis for personal jdx exists.
How can corporations be served outside of the U.S.?
Service on corporations and associations outside of the U.S. may be made using any methods available for service on an individual outside of the U.S., except personal delivery.
How is the U.S. served?
To serve the U.S., a party must:
- deliver a copy of the summons and complaint to the U.S. attorney (or a designee) for the district where the action is brought, or send a copy by registered or certified mail to the civil-process clerk at the U.S. attorney’s office;
- send a copy by registered or certified mail to the U.S. attorney general; AND
- If the action challenges an order of a nonparty agency or officer of the U.S., send a copy by registered or certified mail to the agency or officer.
How is a U.S. agency, officer or employee sued in an official capacity served?
Rule 4(i)(2): to serve a U.S. agency, officer, or employee sued in an official capacity, a party must sue the U.S. and also send a copy of the summons and complaint by registered or certified mail to the agency, officer or employee.
How is a U.S. officer of employee sued individually served?
Rule 4(i)(3): to serve a U.S. officer of employee in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the U.S., a party must serve the U.S. and also serve the officer or employee under the normal rules for serving an individual.
What is waiver of service generally?
Rule 4(d): a competent individual, corporation or association that is subject to service has a duty to avoid unnecessary expenses of serving a summons by waiving service. The plaintiff may notify such a defendant that an action has been commenced and request that the D waive service. The rule does not apply to government entities, infants or incompetents.
How does a P request waiver of service?
A plaintiff’s notice and request for waiver of service must be in writing and be addressed to the individual defendant, or, for a corporation, to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process.
What must a notice and request for waiver of service contain?
A plaintiff’s notice and request for waiver of service must be accompanied by:
- a copy of the complaint
- two copies of a waiver form
- prepaid means to return the form
How long must a P give a D to return the notice and request for waiver of service?
A P must give a D a reasonable time of at least 30 days after the request was sent (or at least 60 days for foreign defendant).
How long does a D have to serve an answer if they waive service?
4(d)(3): if a D timely returns a waiver of service before being served with process, then the D does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after D was outside a judicial district of the U.S. This is an incentive to waive, b/c the normal time period in which an answer must be served is 21 days.
Does waiver of service also waive objections to personal jdx or venue?
no; waiver of service does not waive any objection to personal jdx or venue.
What date is considered the date of service if service is waived?
If the D agrees to waive service, then the date on which the P files the waiver with the court will be deemed the date of service.