Service of Process CP

Federal Civil Procedure

If formal service is satisfied for the summons and complaints, what procedure is required for subsequent filings?

Subsequent papers filed with the court (EG motions, answers) do not require formal service.

Who may serve?

Who may serve: any non-party aged 18 or older

What is the required timing for service?

Timing: Service must be within 90 days of filing of the case

With what documents must D be served?

D must be served with:

1. Summons: formal notice of the suit

2. Copy of complaint

What is service of process? What documents are involved and what significance does it have regarding PJ?

Service of process is the delivery to D by P of the summons and complaint, which satisfies notice requirements for PJ.

If D waives service, what benefit might it give to D?

If D agrees to waive service, D extends her time to answer complaint to 60 days from the date the waiver request was sent (as opposed to normal 21 days)

May D be served by mail? If so, when?

Waiver of service: P may request that D waives service by mailing D the complaint and formal request to waive service

What are acceptable methods of service of process?

Most Common Methods of Service of Process:

1. Personal service

2. Substituted service

3. Service upon D’s authorized agent

4. Any method permitted under state law

Party A sought and received a 14-day TRO against Party B in a contract dispute. When a hearing could not be scheduled within 14 days, the court extended the TRO another 14 days. Can Party B appeal the order extending the TRO?

Temporary Restraining Orders (TROs):

-Expiration: No more than 14 days from issuance; court may extend for good cause or withing adverse party consent; if extended beyond 28 days without adverse party’s consent, TRO is treated as preliminary injunction (and become appealable).

Can a party subject to a temporary restraining order be held in contempt for violating the order if the party never knew it was issued?

Temporary Restraining Orders (TROs):

-Actual Notice: Adverse party must have actual notice before they can be held in contempt for violation.

When is notice to an adverse party not required for a temporary restraining order?

Temporary Restraining Order (TROs)

-Notice to adverse party: not required if moving party:

1. Provides specific facts showing immediate and irreparable injury will result before adverse party can be heard; and

2. Certifies in writing all efforts to give adverse party notice

What is the difference between a preliminary injunction and a temporary restraining order?

-Preliminary Injunctions: Traditional 4 part test

1. Irreparable injury (aka no adequate remedy at law)

2. Reasonable likelihood of success on the merits

3. Balance of hardships

4. Public interest

   -Notice hearing: required for the adverse party

   -Appealable

5. Temporary Restraining Order (TROs)

   -Notice to adverse party: not required if moving party

   i. Provides specific facts showing immediate and irreparable injury will result before adverse party can be heard; and

   ii. Certifies in writing all efforts to give adverse party notice

What is an interlocutory injunction and what purpose does it serve?

Interlocutory injunctions are court orders requiring a person to do or cease doing a specific action before trail, while case is pending

• Purpose is to prevent irreparable injury that will occur before there is a final judgment.