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Flashcards in Service of Process Deck (12):

Service of Process

I. SERVICE OF PROCESS: delivery of the summons and complaint; proper service req’d for jx over party served

A. Two-Part Test for Proper Service:

1. Statutory/Rule Requirements- state or federal

2. Due Process Requirements: notice must be reasonably calculated, under all the circumstances, to apprize interested parties of the pendency of the action; individual notice by mail is prob. the minimum allowed


Waiver of Service and Actual Service

1. Waiver of Service: preferred method; send to ∆ summons and complaint, request for waiver of service, waiver of service form and prepaid return envelope

a) if ∆ waives service, has 60 days to answer
b) if ∆ does not waive service, without reason, then ∆ must pay costs π incurs in actual service

2. Actual Service: if ∆ does not respond to waiver of service in 30 days, then actual service; process servers: any non-party over age 18


Actual Service of Individuals

(1) Personal Delivery: putting documents physically on person of ∆ or leaving them at usual residence with suitable person (suitable age & discretion) that LIVES there

(2) pursuant to law of state where district court is located

(3) pursuant to law of state where service takes place


Service on corporations and associations on the US

(1) pursuant to law of state where district court is located
(2) pursuant to law of state where service takes place
(3) by delivery to an officer or managing agent or other agent authorized to receive service


Territorial Limits on Federal Service

d) Territorial Limits of Federal Service: service outside the state is allowed only if the state allows it for state courts UNLESS:

(1) Bulge Rule applies: ∆ joined (bc required to be joined or impleaded 3rd party ∆) and is served w/I 100 miles of the court house
(2) federal statute authorizes nationwide service


South Carolina Summons

1. Summons: contain title, court, case classification, associated case number and names and addresses of all parties; signature of π or π’s attorney; shall

a) direct ∆ to serve an answer or demand for complaint
b) state the time within which the response is required
c) give the ∆ notice that judgment will be entered if no response is timely served


Who To Serve

1. Service of process effective by delivering summons & complaint to:

a) Individual: who Is not incompetent or under 14
b) Minors and Incompetents: serve minor/incompetent AND guardian, parent, caregiver with whom she resides
c) Corporations & Partnerships: serve officer, managing or general agent or any agent authorized to receive service of process; service on foreign corps. not authorized to do business in the state by serving the Secretary of State who will forward the docs to the corp.


How to Serve

2. How to Serve:
a) Personal Service: same as federal- by either
(1) delivering the documents to the person personally; or
(2) leaving the docs at his usual place of abode w/ person of suitable age and discretion then living there
b) Certified Mail or Qualified Commercial carrier (FedEx, UPS, etc.): on competent individuals over age 14, corporations & partnerships
c) Out-of-State Service (under long arm statute):
(1) personal delivery
(2) certified mail
(3) complying with the law of the state where service is made
d) No Service on Sunday: while going to and from church


Substituted Service

3. Substituted Service:
a) Non-Resident Motorists: by complying with long arm statute or serving Director of Dept. of Public Safety
b) Insurance Companies: deliver to copies to Director of SC Dept. of Insurance; on unauthorized insurers by serving SC Sec. of State


Service by Publication

4. Service by Publication
a) when π demonstrates by affidavit that after due diligence the ∆ cannot be found in the state, the judge or clerk may order service by publication
b) publication in the newspaper that will most likely give notice to the person to be served AND direct the summons to be mailed to the person


When to Serve

5. Must file summons and complaint within the SOL, then serve within 120 days of filing


Service by Motions

6. Service of Motions, Discovery, other docs. on party’s attorney by
a) leaving document with the atty
b) mailing it to the atty
c) or leaving it at the atty’s office with a clerk, and if no one is in charge in a conspicuous place