CIVIL PROCEDURE OUTLINE
I. Service of Process
a. Who may serve
i. Rule 4 authorizes any person not a party to the action who is at least 18 years old to serve process (summons and complaint). In certain limited situations (e.g. where U.S. is a party), a party may request that the service be made by a US marshal
b. How service is made
i. Generally, Rule 4 provides that personal service or service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or service upon an authorized agent of the defendant, in valid. Alternatively, service may be made under state rules or under the waiver provision of Rule 4(d), by mail.
ii. Waiver (Service by Mail)
Alternatively plaintiff may mail to defendant (by first class mail) a copy of the complaint with a request to waive formal service of summons. The waiver is effected by defendant’s return of a waiver form included in the mailing. Defendant had 30 days from the date the request is sent in which to return the waiver. The waiver of service does not waive defendant’s right to object to venue or jurisdiction. Failure of defendant to waive formal service requires plaintiff to effect service by some other proper method, and defendant shall be liable for the cost of this service. A defendant who waives formal service obtains an advantage in addition to avoiding the costs of alternative service: he must answer not later than 60 days after the date on which the request for waiver was mailed to her, as compared to 20 days if the plaintiff is required to effect formal service of the summons and complaint.
c. Parties Served Outside State
i. The court will acquire personal jdxn over parties served outside the state if they are third-party defendants [Fed R. Civ. P. 14] or required to be joined for just adjudication [Fed R. Civ. P. 19], if served within 100 miles from the place where the action is pending (but within the United States) .
d. Immunity from Process
i. The federal courts recognize the immunity from service of process of parties, witnesses, and attorney who enter a state to appear in another
e injury to a party, and the injury will result before a preliminary injunction hearing can be held.
Requirements for Ex parte TROs
a. Generally, notice must be given before a TRO is issued. However a court may grant a TRO without notice to the adverse party if three requirements are met [Fed. R. Civ. P. 65(b),(c)]:
i. Specific Facts Showing Immediate and Irreparable Injury
The moving party must give specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition.
ii. Efforts to Give Notice
The moving party must certify in writing all efforts she made to give notice to the
