Civil Procedure

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• Publisher: QuickStudy Reference Guides
• Year: 2018
• ISBN:
  9781423237518
• Topic: Law
• Subtopic: Civil Procedure
• Index: Law

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Service Of Process & Notice

• COMMENCING AN ACTION [FRCP 3]
  1. A civil action is commenced by filing a complaint with the court
• SUMMONS [FRCP 4]
  1. Contents; a summons must:
     1. Name the court and the parties
     2. Be directed to the Defendant
     3. State the name and address of the Plaintiff ’s attorney, or if unrepresented, of the Plaintiff
     4. State the time within which the Defendant must appear and defend
     5. Notify the defendant that a failure to appear and defend will result in a default judgment against the Defendant for the relief demanded in the complaint
     6. Be signed by the clerk
     7. Bear the court’s seal
  2. Court may permit amendments
• ISSUANCE
  1. Plaintiff may present a summons to the clerk for a signature and seal and if properly completed, it must be signed, sealed, and issued by the clerk to Plaintiff for service on Defendant. Multiple Defendants must each be issued a summons
• SERVICE
  1. Summons served with copy of complaint. Plaintiff is responsible, so service within time is allowed by FRCP 4(m)
  2. By whom: Any person (not a party) at least 18 years old
  3. By a marshal or someone specially appointed: At the Plaintiff ’s request, the court order may be made by a U.S. marshal or deputy marshal or by a person specially appointed
• WAIVING SERVICE
  1. Requesting a waiver: Duty to avoid unnecessary expenses of serving summons; Plaintiff may notify Defendant that action has commenced and request that Defendant waive service of a summons. The notice and request must:
     1. Be in writing and be addressed to the individual Defendant or to the officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of the process
     2. Name the court where the complaint was filed
     3. Be accompanied by a copy of the complaint, two copies of the waiver form, and a prepaid means for returning the form
     4. Inform the Defendant, using the form of the consequences of waiving and not waiving the service
     5. State the date when the request is sent
     6. Give Defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the Defendant outside any judicial district of the U.S.—to return the waiver
     7. Be sent by first-class mail or other reliable means
  2. Failure to waive: If Defendant located within the U.S. fails, without good cause, to sign and return a waiver requested by Plaintiff located within the U.S., the court must impose on the Defendant:
     1. The expenses later incurred in making the service
     2. The reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses
  3. Time to answer after a waiver: Defendant who, before being served with a process, timely returns a waiver, need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to Defendant outside any judicial district of the U.S.
  4. Results of filing a waiver: When Plaintiff files a waiver, proof of service is not required
  5. Jurisdiction and venue not waived: Waiving does not waive any objection to personal jurisdiction or to venue
• SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE U.S.
  1. An individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the U.S. by:
     1. Following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made
     2. Delivering a copy of the summons and of the complaint to the individual personally
     3. Leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there
     4. Delivering a copy of each to an agent authorized by appointment or by law to receive service of process
• SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY
  1. Unless federal law provides otherwise, an individual— other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the U.S.:
     1. By any internationally agreed upon means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents
     2. If there is no internationally agreed upon means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
        1. As prescribed by the foreign country’s law for service in that country in an action of general jurisdiction
        2. As the foreign authority directs in response to a letter rogatory or letter of request
        3. Unless prohibited by the foreign country’s law, by delivering a copy of the summons and of the complaint to the individual personally or using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt
     3. By other means not prohibited by international agreement, as the court orders
• SERVING A MINOR OR AN INCOMPETENT PERSON
  1. A minor or an incompetent person in a judicial district of the U.S. must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the U.S. must be served in the manner prescribed by FRCP 4(f)(2)(A), 4(f)(2)(B), or 4(f)(3)
• SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION
  1. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, ...

Table of contents

• Federal Subject Matter Jurisdiction
• Supplemental Jurisdiction
• Personal Jurisdiction
• Removal From State To Federal Court
• Service Of Process & Notice
• Venue
• Law Applied By Federal Courts
• Pretrial Procedures
• Required Joinder Of Parties [Frcp 19]
• Permissive Joinder Of Parties [Frcp 20]
• Joinder Of Claims [Frcp 18]
• Motions
• Verdicts & Judgments
• Appealability & Review
• Trial
• Post Trial