Service of Process
must be a rule of the court and consistent with due process. It gives “reasonably calculated” notice so that defendant has actual notice of the action allows defendants to respond. (can’t make up a type of service). If notice not received, may still be enough. Notice by newspaper may be enough if can’t locate defendant.
Texas service may be achieved
- within state, by in hand service by sheriff or constable or by registered mail which only defendant can sign
- by consent, such as appearing to defend a lawsuit without waiving, or
- outside of state, by service registered agent within state or most frequently serving on secretary of state, who will forward by registered mail.
Texas service subsitute
A reasonably calculated method; need motion and sworn showing of inability to served defendant under the other rules; possibly by publication; Service to corporations to registered agent, officer, or substituted service on the secretary of state
Steps for Texas service out of state
- go to courthouse
- Have clerk file stamp a copy and issue summons.
- Send to process server or sheriff who serves on secretary of state
- Secretary of state forwards to defend by registered mail
- Process Server makes return
- Secretary gives certificate that contains green card to show it has been received by defendant
Notice and Waiver
Executed request by defendant, when filed by plaintiff, is equivalent to service.
A “duty” is imposed by the rule; Rule expressly doesn’t waive venue or personal jurisdiction; 60 days to answer; costs (including attorney fees for motion) shall be imposed with no waiver.
If not waived, must serve. Do not use waiver unless you believe defendant will waive (have agreement with the other attorney); especially don’t use if close to statute of limitations.
Federal Service of individuals
Can be served pursuant to state low or alternatively: In-hand by any person 18 or over and not a party (or marshal, if ordered by the court), Leave with service which must be left at usual abode or dwelling on person of suitable age and discretion that resides there, and an agent, someone appointed or by law (secretary of state); other methods, in hand, leave with someone in charge at place of work or in-office where can be seen, etc.
Federal Service of Corporations, Associations and other provisions
State law (as for individuals) or alternatively, by service officer, managing agent, or general agent or agent authorized by appointment or by law (secretary of state); must also mail to defendant if governing law requires. infants and incompetents (usually parents or guardians), The U.S. or its agencies (complicated, more than one method of service required); local state or federal governments
Territorial limits of federal service
Federal courts generally have no greater out of state jurisdiction than state court for state claims; The state long arm statute provides the limit of effective service, even in federal court. If it’s a federal claim, jurisdiction is extended to due process limits.
The return of service
The return, or proof of service, is made by person effecting service (by affidavit). In default cases, the validity of judgment depends on validity of return.
Venue purpose and nature
There are usually many court that could acquire jurisdiction, many forums may be distant or inappropriate, venue is a way of creating a convenient place for trial. Court with improper venue can still give binding judgment. Unlike lack of jurisdiction, which empowers a court from acting even though not raised by parties, venue is a matter of privilege of the defendant
Federal venue exists where?
in district and division. 99.9% are 1 and 2.
- Where all defendants reside or where any defendant resides (if all in same state);
- Where “a substantial part of” the acts or omissions underlying the claim, or property located; or
- In diversity cases, where personal jurisdiction over defendants, if no other district; in arising under cases, where any defendant “found”
Corporations reside for venue
where ever they are subject to personal jurisdiction (venue gets collapsed into personal jurisdiction for corporations)
unless timely motion by defendant.
Discretionary transfer and 4 requirements
A district court may transfer to district or division where “it might have been brought”
- Convenience of parties or witnesses
- Interest of Justice- most commonly where controversy arose, there is a strong interest in having controversies adjudicated locally
- May transfer- court has discretion
- Transferee district must be one fixed by law, not merely by defendants consent
- Law of transferor district still holds
Texas consent service of process
any appearance other than after, and subject to, special appearance.