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Civil Procedure I

PLEASE NOTE THAT this guide was created by law students to assist other law students in their preparation for the Civil Procedure 1 examination.

Assessing Notice

1.    Notice must convey sufficient information to notify the party of how and when it should respond and must also give the person a reasonable amount of time to appear in court.

2.    Notice must be rendered so that a person that actually wanted the party to appear in court would go about notifying the party.

3.    Federal Service Rule 4- Summons and Complaint 4(c), by anyone over 18 years old that is not a party and sometimes the court will require a marshal. Service must happen to the person or an agent, but not to a minor or a mentally incompetent person. Service can be waived by 4(d)(1) in order to avoid unnecessary expenses. Answer must happen within 30 days, if no service was waived then 60 days. Service must be done within 120 days of the complaint being filed.

4.    Waiving service does not waive objection to personal jurisdiction or venue. 

Waiving Service

Rule 4(d)

   -      individual and company defendants have a "duty" to avoid unnecessary service costs

   -      must waive service, if D receives proper notice + waiver is requested by plaintiff

BENEFITS OF WAIVER

   -      plaintiff saves costs

   -      defendant gets three times the time to answer (60 days)

   -      defendant's challenges to personal jurisdiction and venue are preserved

CONSEQUENCES OF NOT WAIVING

   -      plaintiff must serve normally

   -      defendant must pay those costs (unless good cause shown) this penalty doesn’t apply to foreign service

Proving Service

Rule 4(l)

   -      process server must file "proof of service" with the court…

   -      if no service then signed consent waiving service

   -      but a failure to file doesn’t affect an otherwise valid service(filing is merely considered presumptive proof of proper service); process server can testify that he served the summons

Opportunity to be Heard

Mullane v. Central Hanover Bank & Trust (1950) Justice Jackson- If you know where beneficiaries are, you must serve them proper notice and an ad in the newspaper isn’t proper notice if you know where they are. Ad in newspaper is alright if you don’t know whereabouts.

Service of Process (Federal Rule 4)

Service-delivery

Process- the legal papers that start a lawsuit

-The formal delivery of the official legal notice of the filing of a lawsuit against you (and providing you with the accompanying legal papers stating the nature of the claims against you.."

-only applies to the delivery of the initial legal papers-the ceremonial method of presentation is not repeated for the subsequent legal documents that are delivered

General Mechanics of Federal service Rule 4

Opportunity to Be Heard

OPPORTUNITY TO BE HEARD right to heard; without full blown trial-the right to present evidence and make an argument before punishment

Three rights under opportunity to be heard

1) right to fair notice

2) right to secure counsel

3) right to cross examine adverse witnesses

Connecticut v. Doehr- under the Federal rules of civil procedure, is a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond, satisfactory according to the Due Process Clause of the 14th amendment NO. Risks and harms to defendant too great.

Form

Form filled out stating the parties' names and the name of the case, the rules of the summons Rule 4(a) and 4(b)

-      issued by clerk

-      identifies case, parties, lawyers

-      directed to defendant

-      notes time allowed for defendant

-      alerts parties about judgment

Who May Serve: Rule 4(c)

-      summons and complaint must be served together by

-      non-party, who is

-      over 18

-      U.S. Marshal(sometimes) at plaintiff's request

Timing: Rule 4(c) and (m)

-      service must be made within 120 days after complaint filed or be dismissed…

-      unless:

-      service made outside US or

-      court extends time for "good cause" -few courts extend (but may if the defendant is deliberately evading service)

Methods in the FRCP

METHODS FOR SERVING PROCESS only need one per case RED RULES tell us who to serve and how

       Individuals in US Rule 4(e)

                  -      waiver? If no then proceed.

                  -      specific federal law? If no then proceed.

                  -      state law

                  -      personal delivery

                  -      dwelling house/usual place of abode

                  -      involves serving someone who lives with you

                  -      an agent

         Individuals in Foreign City Rule 4(f)

                  -      most of the time we use treaties

                  -      congressional statute

                  -      if no international agreements then rules of that nation

                  -      serving someone abroad, citizen or not

         Minors and Incompetents 4g

                  -      no waiver option

                  -      follow state law

                  -      or if served in foreign nation-as that nation permits

                  -      directed by nation

                  -      directed by court orders

         Corporations, Partnerships or Associations

                  -      waiver

                  -      state law

                  -      delivery to officer, managing agent, general agent or authorized agent (and mailing if permitted)

                  -      or if served in foreign country-like individuals

         Federal Government and its Employees Rule 4(i)

                  -      must serve to US attorney and US Attorney General+plus if attacking an agency or officer send a copy to them -must serve all because there we don’t like defaults against the United States

          Foreign, State and Local Governments Rule 4(j)

                  -      if foreign nation, in accordance with Federal statute 28 U.S.C. § 1608.

                  -      if State or local gov't by delivery to chief executive officer or as state law provides

          In rem Rule 4(n)

                  -      if you want to attach you have to find a federal statute

                  -      if personal jurisdiction is NOT possible with reasonable effort, then as provided by state law (example of federal long arm statute not going to the extent that constitution permits)

South Carolina Service of Process

WHO MAY SERVE: Rule 4(c) an attorney "in" the action may not serve original process. 

TIMING: service must be made (a) within SOL or (b)if beyond that, within 120 days of filing

SPECIAL MAIL

On Individuals, Corp's and Partnerships

-      certified/registered mail

-      with return receipt

-      delivery restricted to be signed by defendant

-      service effective upon receipt's due

MINORS AND PRISONERS Rule 4(d)(2)

-      for imcompetents requires that a parent served and if not available, guardian, co-resident at home or employer

-      prisoners: has to be personally served but allow a sheriff to serve

CORPORATIONS AND PARTNERSHIPS Rule 4(d)(3)

-      same procedure as Fed. R. Civ. P.

National Dev. Co. v. Triad Holding Group You can be served at any of your residences as long as you're there. Defendant was present and living in NY when service was made. In a previous proceeding the defendant had listed the place as his residence. Federal Rules of Civil Procedure allow service to individuals other than defendant, who are of suitable age and who are residing at defendant's dwelling house or usual place of abode.

FINAL SERVICE CONCEPTS: Substituted service

-   (seen in Pennoyer); anything other than what is permitted by the rules

-      often permitted by statute, where the defendant is not present in the forum and..

-      circumstances justify unusual means of service (eg: by publication, by regular mail, by e-mail etc.)

Evading Service

-      when a defendant intentionally endeavors to evade service

-      Court may order substituted service, or service upon knowledge

Immunity From Service

-      immunity may be:   prescribed by law of the forum

                                  Ordered to prevent fraud

                                  Granted to permit in-forum testimony in another, unrelated proceeding

Sewer Service

-      proper service must have occurred

-      actual knowledge of the lawsuit is not enough

REMEMBER-these special, formal and ceremonial service rules apply delivery of the original notice of the lawsuit; once that formal notice is given, subsequent legal papers are to be served on the attorney and generally just by mail (rule 5)

PROVING SERVICE: Rule 4(l)

-      process server must file "proof of service" with the court…

-      if no service then signed consent waiving service

-      but a failure to file doesn’t affect an otherwise valid service(filing is merely considered presumptive proof of proper service); process server can testify that he served the summons