I. Manner of Service
A. Rule 4: Rules for serving a summons (FRCP 36-40)
1. Individual: The manner for serving an individual is set out in (4) e:
a. Personal: By serving him personally 4(e)(2)
b. Substitute: By leaving the summons and complaint at D’s residence with a person of “suitable age and discretion” residing there 4(e)(2)
c. Agent: By serving an agent appointed or designated by law to receive process. 4(e)(2). (i.e. in many states the Director of Motor Vehicles is the agent to receive process in suits involving car accidents)
d. Local State Law: By serving D in the manner provided by either: (1) the law of the state where the district court sits, if that state has such a provision; or (2) in the manner provided by the law of that state where the person is being served. 4(e)(1)
e. Foreign defendants: A special rule governs service outside the United States on an individual. Any method allowed by a particular international treaty or any method allowed by the country where the service occurs, can be used. 4(f)
2. Corporation: Service on a corporation my be made by leaving the papers with the officer, a managing or general agent, or any other agent authorized by appointment or by law to receive process for the corporation. 4(h)(1)
a. Test for suitability: Whether a given corporate employee is an “officer or managing or general agent” and is thus qualified to receive process is established by examining her position within the corporation; if that position makes her likely to pass the papers on to the lawyer or directors who would be expected to prepare the defense, she is qualified.
b. Local state law: As with individuals, service on a corporation may also be made in the manner provided by the law of the state where the action is pending or the law of the state where the service is made. 4(h)(1) first clause
c. Foreign defendants: As with individuals, special rules for serving corporation that are not present in the U.S. are provided, in 4(h)(2). These rules are essentially the same as for individuals.
3. Waiver of Service: Rule 4(d) allows the plaintiff to serve the summons and complaint by mail, provided that the defendant cooperates. The plaintiff must “request for waiver of service” if the defendant agree, no actual in-person service is needed.
a. Procedure: The plaintiff begins the waiver-of-service procedure by sending the defendant a notice that the action is being commenced, a request that the defendant waive service of the summons, and copy of the complaint. The notice may be sent “through first class mail or other reliable means” 4(d)(2)(B) . Also Facsimile transmission is valid.
b. Time to respond: The defendant has 30 days to respond to the request for waiver (60 days for a foreign defendant).
c. Incentives: The defendant is free to refuse the grant the waiver, in which case the plaintiff must serve the summons by the in-person methods. Rule 4(d) gives the defendant two significant incentives, one a “carrot” and the other a ‘stick” to grant the waiver.
i. Additional time to answer: The “carrot” is that if the defendant grants the waiver, she get 60 days following the date on which the request for waiver was sent, in which to answer the complaint (compared with 20 days from service of process, provided by 12(a). (Foreign defendants get 90 days).
ii. D must pay cost of service: The “stick” is that if the defendant refuses the waiver, and requires plaintiff to bear the expense of serving the summons, “the court shall impose the cost subsequently incurred in effecting service on the defendant unless good cause for failure be shown” 4(d)(2). (These rules only apply to a defendant “located within the United States”; “foreign defendants suffer no monetary sanction if they refuse to grant the waiver.
d. No waiver of P.J. or Venue: A defendant who grants the waiver of personal service will no be deemed to have waived any objection to venue or personal jurisdiction over him. 4(d)(1). So D still makes a motion for dismissal on either of these count under 12(b)(2)
here Harris agreed to pay the amount due at a 14% interest rate per year. Harris failed to make any payments and Mid-Cont. filed suit for Breach of Contract. They entered into negotiations one more time but it let nowhere and so Mid-Cont. filed a motion for default judgment and the district court granted the amount of $28,544.75. However, instead of executing the default judgment, Mid-Cont. accepted a promissory note for Judgment. Harris failed to pay the amount and Mid-Cont. filed on action to collect on Harris’s promissory note. After several attempts to process Harris with the complaint, Mid-Cont. sent a letter to the residence of 13 secor drive and to Harris’s counsel. After another attempt to negotiate with Mid-Cont., the court entered a default judgment. Harris files a motion for relief claiming that b/c service upon him did not comply with Rule 4 of the federal rules of civil procedure, that the district court lacked jurisdiction over him at the time of the entry of judgment. The district court said service upon Harris did not have to comply with the Rule 4 b/c it passed their own three part test.
2. Issue: Can the courts form its own test to determine whether to assert personal jurisdiction over a defendant?
3. Holding/Rationale: No, Reversed. The Supreme Court disagrees with a court to make its own rules authorizing service of summons. Also mentions that even if they did apply the three part test, it would still fail:
a. Actual notice is insufficient to give a defendant personal jurisdiction over someone.
b. There wasn’t any substantial compliance…no proof.(Rule 4 l)
c. There was no evidence of evasion of process.