Civil Procedure - Module 3: Notice and Service of Process

Watch Federal Civil Procedure Deep Dive: Notice and Service of Process (Or Read UBE CC: Module 3)

What is the constitutional standard for notice?

Notice must be reasonably calculated, under all the circumstances, to inform interested parties of the action.

Does personal jurisdiction eliminate the requirement of notice?

No. The defendant must receive proper notice in addition to being subject to personal jurisdiction.

What two documents constitute process?

A summons and a copy of the complaint.

What is a summons?

A formal court notice informing the defendant of the lawsuit and the time to respond.

Who signs, seals, and issues the summons?

The court clerk, after the plaintiff prepares and submits it.

Who may serve process in federal court?

Any person who is at least 18 years old and is not a party to the action.

May the plaintiff personally serve process?

No. The server must be a nonparty.

Must a federal process server be appointed by the court?

No.

What is the general deadline for serving process within the United States?

Within 90 days after filing the complaint.

May the service deadline be extended for good cause?

Yes.

What are the four alternatives for serving an individual within the United States?

Personal service, substituted service, service on an authorized agent, or an applicable state-law method.

What is personal service?

Delivering the summons and complaint directly to the defendant.

Where may personal service occur?

Anywhere the defendant can lawfully be served; it need not occur at the defendant’s home.

What are the three requirements for substituted service?

Service at the defendant’s dwelling or usual abode, on someone of suitable age and discretion, who resides there.

Must substituted service be attempted only after personal service fails?

No. These methods are alternatives.

Must the substitute recipient be related to the defendant?

No. The recipient must have suitable age and discretion and reside there.

Is there a fixed minimum age for a substitute recipient under the federal rule?

No. The standard is suitable age and discretion.

Must the defendant live at a location every day for it to qualify as a usual abode?

No. Whether it qualifies depends on the facts.

When might service on a butler at the defendant’s summer home be valid?

When the home qualifies as the defendant’s dwelling or usual abode, and the butler has suitable age and discretion and resides there.

What is required for valid service on an individual’s agent?

The agent must be authorized to receive service of process.

Does a personal assistant automatically qualify as an agent for service?

No. The assistant must be authorized to receive service.

Which states’ service methods may be used to serve an individual in a federal action?

Methods permitted by the state where the federal court sits or the state where service occurs.

When may a state-law method allowing service by mail be used in federal court?

When permitted by the law of the state where the federal court sits or where service occurs.

How may a business or organization be served under the methods discussed in the lecture?

By delivering process to an officer or managing or general agent, or by using an applicable state-law method.

Which state’s law governs service on a minor or incompetent person within the United States?

The law of the state where service occurs.

What international agreement may govern service abroad?

The Hague Convention.

What alternative methods of foreign service does the lecture identify?

A U.S. court-directed method, a foreign-law method, a method directed through a letter rogatory, or permitted personal delivery or clerk-sent mail.

What is a letter rogatory?

A request from a U.S. court to a foreign authority for assistance, such as directing service of process.

When may personal delivery abroad be used under the method discussed?

When it is not prohibited by the foreign country’s law.

What are the requirements for foreign service by mail under the method discussed?

The U.S. court clerk sends the mail, it requires a signed receipt, and foreign law does not prohibit it.

What must the plaintiff send when requesting waiver of service?

Notice and a waiver request, a copy of the complaint, two copies of the waiver form, and a prepaid means of returning it.

How much time is generally provided to return a waiver of service?

30 days, or 60 days if the defendant is outside the United States.

May both individuals and entities waive service?

Yes.

Is requesting a waiver by mail the same as serving process by mail?

No. A waiver request asks the defendant to dispense with formal service.

Does waiving service waive an objection to personal jurisdiction?

No. Waiving service does not waive a personal jurisdiction objection.

When does a waiver of service become effective?

When the plaintiff files the signed waiver with the court.

For service timing, when is a defendant who waived service treated as served?

On the date the plaintiff files the waiver with the court.

What consequence may follow refusal to waive service without good cause?

The defendant may be required to pay the costs of formal service.

How does a civilian process server prove service?

By filing an affidavit describing how service occurred.

What is an affidavit?

A sworn statement.

Does failure to file proof of service invalidate otherwise valid service?

No.

What is the general geographic reach of federal service discussed in the lecture?

Throughout the forum state and outside it when the forum state’s law permits.

What state statute commonly supports out-of-state service and personal jurisdiction?

The forum state’s long-arm statute.

What immunity from service does the lecture describe?

A person entering a state as a party, witness, or attorney in another civil case is immune from civil service in federal court there.

What are examples of later documents that must be served?

Answers, other pleadings, motions, and discovery documents.

Do later documents generally require a summons?

No.

On whom are later documents generally served?

The party’s attorney, or the party directly if proceeding pro se.

What does pro se mean?

Representing oneself without a lawyer.

When may later documents be served by email under the lecture’s rule?

When the parties agree.

When is service of later documents by mail complete?

Upon mailing.

How does mailing generally affect a response period measured from service?

It adds three days.

If a discovery response is ordinarily due 30 days after service, what is the general period when service is by mail?

33 days.