Service, Pleadings, Choice of Law

Question 1

Personal Service

Answer 1

Used to assert personal jurisdiction (puts defendant on notice)

Types of service that are always allowed

1. In-hand personal delivery
2. Leaving the summons at the defendant’s dwelling or usual place of abode with a person of suitable age and discretion
3. Delivery of the summons to an authorized agent; AND
4. For person in foreign countries, service can be may be registered mail, return receipt requested

Question 2

Special Rules of Service

Answer 2

1. Service on a Minor: Service on the minor AND the parent
2. Adjudicated Incompetent: Service made on the incompetent AND guardian
3. Partnership: Service on a general partner, and attorney in fact, or an authorized agent
4. Corporation: Service on an officer, director, managing agent, or an agent appointed to receive service process
5. Non-resident Motorists: Service can be made on state official who forwards a copy to the out of state defendant.
6. In Rem and Quasi Rem: Diligent effort must be made to locate all claimants to the property and serve them personally. If claimants not able to be located, service by publication is acceptable.

Question 3

Federal Rules about Venue

Answer 3

• Claim of improper venue must be made at the first opportunity or it is waived
• Federal venue is proper in a district where:
  
  • Any defendant resides as long as ALL defendants reside in the same state OR
  • Where the claim arose
  • OR (RARE) any district where defendant is subject to personal jurisdiction
• For a case begun in state court, venue is automatically proper in the federal district where the state court sits, even if venue would not have been proper if first filed in that federal district court.

Question 4

Transfer

Answer 4

[Frequently Tested]

General Rule: Transfer is only to a district with proper venue

EXCEPTION:

Possible to transfer to a jurisdiction without proper venue if ALL PARTIES agree.

If case was brought in district with proper venue and is then transferred to another district, the laws of the transferor (FIRST) district control.

[“Take your law with you”]

Question 5

The Erie Doctrine

Answer 5

General Rule: In a diversity case, the federal court applies STATE substantive law.

State Substantive Law

• The substantive rules that govern conduct (what defenses can be asserted, what must be proved to win case in chief, etc.)
• Statute of Limitations
• The burdens of proof
• State rules on choice of law

Federal Procedure

• Apply federal procedure

Two Common Applications of Erie

1. If the choice of procedure would be outcome determinative the federal court should apply state law to prevent forum shopping
2. The role of the jury in federal court is entirely controlled by federal law
3. If no federal statute or rule on point then federal court decides to follows state or federal law