CIVIL PROCEDURE CLASS 5 (9/4/01) SERVICE OF PROCESS Columbus School of Law The Catholic University of America Professor Fischer.

CIVIL PROCEDURE CLASS 5 (9/4/01)

SERVICE OF PROCESS

Columbus School of Law

The Catholic University of America

Professor Fischer

WHAT WILL WE LEARN TODAY?

1. We will learn about pleading requirements for the complaint by learning Rules 8(a) (as explained in Conley v. Gibson), 8(e), 8(f), and 9(f)

2. We will do a short in-class exercise on reading rules

3. We will learn about requirements for service of the complaint by studying FRCP Rule 4

WRAP-UP: 8/30/01 Discussion of key policy interests and holding of Hall

revealed 2 themes: (1) tension between formal rules/policies; (2) enlargement of court’s power by stretching rules

Simulation of an initial strategy session in Carpenter, discussing possible causes of action, plaintiffs, defendants, information gathering, remedies, and pros and cons of litigation

Discussion of possible functions of pleading (e.g. notice, siphoning out sham claims, narrowing issues)

Under the FRCP, notice is the primary function of pleading FRCP 3, 7(a) Discussed procedural history, substantive legal issues,

procedural issues, and legal arguments in Conley v. Gibson.

CONLEY V. GIBSONTHE HOLDING

What is the holding of the Supreme Court? [note how it resolves ambiguity in Rule 8(a)]

In your opinion, how do policy issues affect the Supreme Court’s decision in this case?

What is the effect of the Supreme Court decision?

IMPORTANT CONCEPT: “NOTICE PLEADING”

FRCP Rule 8(a) (statement of claim) Why doesn’t Rule 8(a) use the words

“facts” or “causes of action”? How specifically must the plaintiff plead

her claim? FRCP Rule 8(e) (alternative claims) FRCP Rule 8(f) (construction of pleadings) FRCP Rule 9(f) (time and place)

Form of Pleadings

Rule 10 (not assigned) sets out formal requirements

Caption listing name of court, title of action, docket number

Separate numbered paragraphs for claims and defenses

Can adopt earlier paragraphs by reference Exhibits can be attached to pleading

RULE READING EXERCISE Please divide into groups of four people. Please read carefully: FRCP 12(a)(1) and 6(a). Work together with others in your group to figure

out the information you need from the client to apply the Rules to calculate the deadline.

Send 1 representative of your group to me with any questions

After you have received your answers, calculate the deadline.

Write your answer on a piece of paper and submit it to me.

FOR CLASSES ON RULES, WHAT DO I NEED TO STUDY?

Please make sure that you read and understand each assigned rule or statute. You may have to apply the rule to problems on the final exam.

The exam may cover any or all of the assigned rules and statutes.

FOR CLASSES ON RULES, WHAT DO I NEED TO STUDY CONT’D?

You are not responsible for learning rules or concepts that are not specifically assigned.

You do not have to memorize rules -- your goal is to understand the rules.

Please make sure you understand how any assigned cases interpret the assigned rules (e.g. how Conley v. Gibson interprets FRCP 8(a)).

COMMENCEMENT OF A CIVIL ACTION

FRCP 3 : IMPORTANT CONCEPT - how is a civil action commenced?

Date of FILING the complaint vs. DATE of SERVICE of the complaint: why do we care?

Why do we care about relationship of filing date (of complaint) to service date?

Must SERVE complaint on D within 120 days after FILING or action will be dismissed (FRCP 4(m))

FILING complete only when Clerk of the court receives complaint, not when it is mailed.

EXCEPTIONS – P can show “good cause” why could not serve (very difficult!) ; waiver

SERVICE OF PROCESS

WHAT IS SERVICE OF PROCESS? -- delivery of the initial notice to a D of the filing of a lawsuit against him

WHAT IS THE PURPOSE OF SERVICE?

Purpose of Service of Process

To comply with DUE PROCESS OF LAW and NOTIFY a D that he has been sued

D must respond to service of process or there will be a JUDGMENT BY DEFAULT

Requirements for Service of Process

When? What? Who? How?

REQUIREMENTS FOR SERVICE OF PROCESS IN FEDERAL COURTS

A. WHEN? TIME REQUIREMENTS - FRCP 4(m) within 120 days after filing unless “good cause” for failure

B. WHAT? DOCUMENT REQUIREMENTS

C. WHO? WHO MUST SERVE THE REQUIRED DOCUMENTS

REQUIREMENTS FOR SERVICE OF PROCESS IN FEDERAL COURTS

A. WHEN? TIME REQUIREMENTS - FRCP 4(m) within 120 days after filing unless “good cause” for failure

B. WHAT? DOCUMENT REQUIREMENTS - FRCP 4(c ) (1) - COMPLAINT and SUMMONS (see 4(a) for form of summons, 4(b) for issuance of summons)

C. WHO? WHO MUST SERVE THE REQUIRED DOCUMENTS - FRCP 4(c) (2) - adult appointed by P or (rarely) court appointed server (req’d for paupers, seamen)

MORE SERVICE REQUIREMENTS

HOW? REQUIREMENTS FOR HOW DOCUMENTS MUST BE SERVED ARE IN FRCP 4(e)-4(j).

FOR THIS COURSE, YOU NEED TO BE FAMILIAR WITH FRCP 4(e) (individuals) and 4(h) (corporations)

HOW? INDIVIDUALS

What are the various methods for service of process on individuals under the FRCP?

HYPO

Bella believes that Scout is liable to her in negligence. Bella gets her attorney, Finn, to draft a complaint. Bella learns on a Sunday that Scout is departing on Sunday for to Antarctica for three months. She tells Finn. Finn sends a process server, Penny, to the airport where she personally serves Scout with a copy of the complaint she plans to file, and a summons. First thing Monday morning, Finn files the complaint with the federal court for the district of Anystate. Is service of process proper under the FRCP?

ANOTHER HYPO

Now Bella wants to sue Paige. She properly files a complaint with the federal district court and, six days later, serves the complaint by delivering a copy of it plus the summons to Paige’s attorney, Caroline.

Is service proper under the federal rules? Why or why not? Do you need additional information to answer? If so, what?

YET ANOTHER HYPO

Sharon files her complaint against Nigel with the Federal Court for the District of Massachusetts. 118 days later she is heading for Nigel’s house when she is hit by a giant SUV and left in a coma for three days. Nigel finds out from a mutual friend that Sharon filed the complaint. The friend tells Nigel exactly what Sharon’s claim is against him. You are the judge. Should you dismiss Sharon’s case 122 days after filing? Why or why not?

STILL ANOTHER HYPO

You want to sue a homeless man, Darren in federal court in the District of Columbia. You properly file a complaint. Your private investigator tells you that Darren spent last night in a shelter at 2247 E Street NW. Under the FRCP, can you legitimately serve Darren with a complaint filed in the U.S. District Court for D.C. by leaving a copy of the complaint and summons with Rose, the director of the shelter, who lives at the shelter and is aged 53? Assume the D.C. law of service for civil actions brought in D.C. Superior Court = FRCP.

SERVICE ON INDIVIDUALS IN U.S.

(NOT INFANTS, INCOMPETENTS) PERSONAL SERVICE LEFT AT DWELLING HOUSE w/ PERSON OF

“SUITABLE AGE AND DISCRETION” DELIVERY TO AGENT APPOINTED TO RECEIVE

SERVICE- e.g. attorney IN A WAY SPECIFICALLY AUTHORIZED BY

FEDERAL LAW IN A WAY SPECIFICALLY AUTHORIZED BY STATE

LAW WHERE DISTRICT COURT SITS OR WHERE SERVICE WILL TAKE PLACE - e.g. service at place of business

WAIVER OF SERVICE

How do we serve process on corporations under the Federal Rules?

What is the relevant Federal Rule?

SERVICE ON CORPORATIONS (IN THE U.S.) UNDER RULE 4(h)

DELIVERY TO OFFICER, MANAGING AGENT, OR GENERAL AGENT

DELIVERY TO AGENT appointed to receive service of process (and if statute requires by mailing to D)

IN A WAY SPECIFICALLY AUTHORIZED BY FEDERAL LAW

IN A WAY SPECIFICALLY AUTHORIZED BY STATE LAW WHERE DISTRICT COURT SITS OR WHERE SERVICE WILL TAKE PLACE

WAIVER

HYPO

Jane, the owner of a Ford Explorer that rolled over in an accident, wants to bring a products liability lawsuit against the Ford Motor Company. She files a complaint in U.S. District Court for the Eastern District of Michigan. Can she properly serve the complaint by mailing it to Ford Motor Company headquarters in Dearborn, Michigan?

Can she properly serve by delivering the complaint to William C. Ford, Ford’s chairman?

WAIVER OF SERVICE

What’s waiver of service? What provision of the FRCP governs

waiver of service?

WAIVER OF SERVICE

Waiver is a way of notifying the D of the action while waiving formal service

The governing provision is FRCP 4(d). You should be familiar with it.

WAIVER OF SERVICE RULE 4(d)

HOW DOES P REQUEST A WAIVER OF SERVICE?

WAIVER OF SERVICE RULE 4(d)

HOW DOES P REQUEST A WAIVER OF SERVICE?

P sends D the complaint, 2 copies of a notice of the action, and a request that the D waive formal service of the summons and complaint upon him. If D returns the request, that waives formal service.

INCENTIVES TO WAIVE SERVICE

The FRCP contain some incentives for individuals and corporations to waive service. What are these?

INCENTIVES TO WAIVE SERVICE

1. Duty on D to avoid unnecessary costs of service (4(d)(2))

2. Costs can be imposed on D if refuses to waive w/o good cause (4(d)(2) and 4(d)(5))

3. If D waives, she has additional time to answer (4(d)(3) and 12(a))

PROOF OF SERVICE

What is proof of service? Which provision of the FRCP governs

proof of service? Is it required if service is waived?

PROOF OF SERVICE

What is proof of service? Proof to the court, usually by affidavit of the process server, that service has been effected. Failure to do so doesn’t invalidate service.

Which provision of the FRCP governs proof of service? Rule 4(l)

Is it required if service is waived? No. See 4(d)(4)

RELATIONSHIP OF JURISDICTION & VENUE TO SERVICE

Even if D has been validly served under FRCP 4, the court cannot hear the action unless it has personal jurisdiction over the D, subject matter jurisdiction over the dispute and proper venue

The attorney should consider the issue of jurisdiction and venue before serving a D, but we’ll learn about these requirements later.

SUMMARY OF FEDERAL REQUIREMENTS FOR SERVICE OF PROCESS

You should know: 1. What service of process is, and what

is the purpose for service. 2. Requirements for TIME,

DOCUMENTS, IDENTITY OF PROCESS SERVER, MANNER OF SERVICE for individuals and corporations and WAIVER OF SERVICE