Finch – CivPro Final Exam Outline – Fall 2014
Service of Process
A new course direction: Where can a suit be filed? Why does the locale of the suit matter? In whose courts can a suit be filed—federal, state, or either? Why does the choice matter? What procedural steps does a plaintiff take to invoke a court’s power to adjudicate a suit? How can a defendant challenge the plaintiff’s choice?
Our first concerns are:
► service of process
► “personal jurisdiction”
o Geographic forum
As a useful generalization, think of “personal jurisdiction” as the court’s power over a defendant and “service of process” as the method for implementing that power.
SERVICE OF PROCESS
Background Observations:
● Due process: A person may not be deprived of “life, liberty, or property” without “due process” of law
· Amendment 5 and 14
Question: What is “property” protected by the Due Process Clause?
· Whenever government acts, due process attaches
If case is dismissed, plaintiff must re-file (original statute of limitations still applies, if expired, good cause needed) HOWEVER,
Even without good cause, court may allow you to refile even after statute of limitations because the court prefers to hear case on its merits rather let it fail on a technicallity – per Fernandez
· If service is quashed, plaintiff is allowed to start over and do service again. Case remains open
“If a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service
or both courts in the same state
● plaintiff may serve: (Federal)
▫ defendant personally (in-hand service) (“personal service”)
▫ a co-resident at defendant’s “usual place of abode” (a form of “substitute service”)
▫ an authorized “agent”
Usually, a person can be served anywhere they can be found. (There are provisions preventing certain things such as serving at night)
2. corporations: R4(h)
● plaintiff may “borrow” state law (R4(h)(1))
● plaintiff may serve: (Federal)
▫ an “officer, a managing or general agent”
▫ authorized “agent” registered agent
-Similar to “apex person”
3. individuals or entities beyond state borders: borrow state law (R4(e), (h))
