Service of Process Flashcards
(14 cards)
What does notice of a lawsuit (AKA process) consist of?
Two Documents
(1) A summons (a formal court notice of suit and timing for response)
(2) Copy of the complaint
Who can serve process?
Any person who is at least 18 years old and not a party to the action
When must process be served?
Within 90 days of filing the complaint (if D is in US)
Can be extended for good cause
What are the FOUR ways process is served on an INDIVIDUAL (in the US)? What are the requirements for the second type?
(1) PERSONAL SERVICE - Process is given to the defendant anywhere
(2) SUBSTITUTED SERVICE - Process given to a substitute for the defendants.
Substituted service can be done only (1) at D’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there.
(3) SERVICE ON AGENT - receiving service must be in scope of agency
(4) STATE LAW METHODS
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 (e.g., by mail)
What are the TWO ways process is served on an BUSINESS OR ORGANIZATION (in the US)?
(1) Delivering process to an officer (e.g., president, treasurer) or to a managing or general agent
(2) Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made
How is process served on minors or incompetent persons (in the US)?
Only by a method permitted by the law of the state in which service is to be made.
How is process served on parties in a foreign country>
A method allowed by international agreement may be used.
If none, then there is a slew of other options (e.g., as directed by US court, method allowed by foreign laws)
How is service of process waived?
P requests waiver of SoP by mailing D a notice and request to waive service.
Must include a copy of complaint, two copies of waiver form, and a prepaid means of returning.
D must sign and mail the waiver form to P within 30 days
Does waiver of SoP waive any defenses?
No.
When is a waiver of SoP effective?
When P files the signed waiver in court.
What happens if D fails to waive service?
If D did not have good cause for failing to return the waiver form, D must pay the costs of service.
How does P prove that process was served on D?
Process server files a report with the court detailing how service was made.
If the server is a civilian, the report is by affidavit.
Where can D be served with process?
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?
If D goes to a state to appear as a party, witness, or attorney in a different civil case in that state
