Buss- University of Chicago Law School. Fall, 2012
I. Service of Process
a. Notes:
i. Five choices for service
1. Service by personally delivering summons and complaint (no question that personal service satisfies due process requirements. Archetypal method for providing notice.
2. Service by leaving copies at D’s dwelling or usually place of abode w/ a person of suitable age and discretion
3. Delivering to an agent appoint by D to receive service of process on his behalf
4. Ps can opt to follow the service rules of the state where the suit will be brought
5. Or if D lives in another state than P, P may follow the rules of D’s state instead of the federal rules
6. —And waivers (incentives for D)
a. Avoid unnecessary expenses
b. Court must impose costs of service on D who refuses to waive service without showing good cause
c. Offers Ds 60 days rather than usual 20 to respond to the complaint
7. You can’t mix-and-match state rules and federal rules for service of process. Choose either state or federal.
8. Pleading
a. Pre-answer motions. 12b2-5. Waived if not brought up at this time. (Or can be included in the response pleading)
i. Exceptions 12b1- improper jurisdiction. 12b6 Failure to state a claim.
b. Judgment on the pleadings
c. SJ: No genuine issue to material facts (anytime until 30 days after close of discovery).__> then you would file motion for judgment as a matter of law.
i. Legal claim
ii. Affirmative defenses
iii. Nonmoving party can’t meet burden of proof
9. Complaint must include three elements
a. Statement of the grounds of subject-matter jurisdiction
b. Statement of the claim
c. Demand for relief sought (damages in an amount to be shown at trial is sufficient)
i. Complaint lacking any of these will usually be dismissed w/o prejudice or w/ leave to amend.
ii. Questions:
1. Can P serve, personally? Not allowed. P is a party to the lawsuit.
2. P has P’s PI, or P’s brother provide service: (Alright under federal rule, state rules may demand sheriff or clerk to deliver)
3. P serves D at D’s dorm: Dorm has to be “usual place of abode” (arguable). (but need both summons and complaint). Place where student is living, at present.
4. P shoves complaint and summons under door: Not allowed need to be left w/ someone of suitable age and discretion
5. P serves D student at student’s permanent residence
6. Can you make personal service to people when they’re vacationing out-of-state?
7. Must P send the waiver of service? No. P may not want to provide D w/ additional time to answer.
b. Rules:
i. Rule Four: Summons
1. Contents
2. Issuance (seal and signed by clerk).
a. Must be issued to each defendant
3. Service
a. Must be served w/ complaint
b. By whom: Any person who is at least 18 years old and not a party may serve a summons and complaint (parties including those who may benefit from the lawsuit? No…only named parties?)
i. Why exclude parties?
1. Avoid altercations
2. Less reliable (might forge proof of receipt)
c. By Marshal or Someone Specially Appointed. Plaintiff may request. Court must order in forma pauperis or for seamen.
4. Waiving Service: (informal alternative to formal service)
a. Defendant may waive service of a summons
i. Waiver must be in writing and addressed to individual defendants and/or authorized agents of companies
b. Waiver must name court, be accompanied w/ copy of complaint, 2 copies of waiver form, pre-paid means of returning form, use Form 5 to inform defendant of consequences of waiving, state date on which request was sent
c. Gives defendant at least 30 days after request was sent to return waiver (60 days if outside any judicial district of US)
d. Must be sent by first-class mail or other reliable means
e. Failure to Waive
i. Will impose on defendant expenses of making service and other reasonable expenses including attorney’s fees, of any motion required to collect service expenses.
f. Time to answer after waiving
i. Timely returning a waiver allows defendant 60 days before sending an answer or 90 days for defendants outside judicial districts of US
g. No proof of process needed after waiver is filed.
h. Waiving service does not waive any future objections to personal jurisdiction or venue.
5. Who can serve and how?
a. Any individual other than a minor, “an incompetent person”, or a person whose waiver has been filed—may serve in a judicial district of US by:
i. Following state law for serving a summons in the state where the district court is located or where service is made; or (Can 16 year olds serve if state law permits it?) (Who is an incompetent person?)
ii. Doing any of the follow;
1. Delivering a copy of summons and complaint to individual personally
2. Leaving a copy of each at individual’s dwelling or usual place of abode w/ someone of suitable age (no specific age requirement) and discretion who resides there
3. Delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
6. Proving service:
a. Unless service is waived, proof of service must be made to the court. Except for service made by US marshal or deputy marshal, proof must be made by server’s affidavit
b. Amending proof: Failure to prove service does not affect validity, the court may permit proof of service to be amended
7. Time limit of service (not applying to service in a foreign country)
a. If D is not served within 120 days after complaint is filed, the court must on motion or on its own after notifying P must dismiss the action against D w/o prejudice or order that service be made within a specified time
i. If P shows good cause for failure to service, court must extend time for servi
/c P should have realized that suit might open the can of beans
b. Rules:
i. Rule Seven: Pleadings Allowed: Forms of Motions and Other Papers
1. Only these pleadings are allowed:
a. Complaint, answer to complaint, answer to counterclaim, answer to crossclaim, third-party complaint, answer to third-party complaint)
2. A request for a court order must be made by motion:
a. Motion must be in writing unless made during a hearing or trial
b. Motion must state w/ particularity the grounds for seek the order
c. Motion must state the relief sought
ii. Rule Eight: General Rules of Pleading
1. A pleading that states a claim for relief must contain:
a. A short plain statement of the grounds for the court’s jurisdiction. Unless that court already has jurisdiction and the claim need no jurisdiction support.
i. Hypo complaint missing any mention of jurisdiction
b. A short and plain statement of the claim showing that the pleader is entitled to relief (Twombly)
c. A demand for the relief sought, which may include relief in the alternative or different types of relief
2. P can present inconsistent claims in a single pleading.
3. Defenses; Admissions and Denials
a. When responding to a pleading, a party must:
i. State in short and plain terms its defenses to each claim asserted against its
1. Admit or deny allegations
b. A denial must fairly respond to the substance of an allegation
c. General and Specific Denials: (D can admit, deny, or claim to lack sufficient information to admit or deny)
i. General denial- Party that intends in good faith to deny all allegations of a pleading—including the jurisdictional grounds
ii. Specific denials- may refute specific allegations or generally deny all except those specifically admitted
d. A party may deny part of an allegation and admit the rest of the allegation is true
e. A part that lacks knowledge or information sufficient to from a belief about the truth of an allegation must so state (has the effect of a denial)
f. Effect of failing to deny: Allegation is admitted if a responsive pleading is required and allegation is not denied.
i. If responsive pleading is not required, allegation is considered denied or avoided. (any situations that we know about?) Like answers to pleadings. Don’t need to reply back.
