Ch. 10 Notice and Methods of Service of Process
Personal jurisdiction of a court is asserted by service of process
Service of process serves two functions:
Asserts court authority over the defendant
Alerts defendant of case so they may defend themselves
Service of process is constrained and guided by the 5th amendment (applicable to federal courts) and by the 14th amendment (applicable to state courts)
The Constitutional Standard: Mullane v. Central Hanover Bank
Mullane v. Central Hanover Bank. (U.S.)
HELD (1), THAT AFTER REASONABLE SEARCH FOR CORRECT PARTY, NOTICE MUST BE SERVED SO AS TO REASONABLY ALERT PARTY OF LAWSUIT, AND (2) THAT SERVICE OF PROCESS MUST SATISFY STATUTE AS WELL AS CONSTITUTIONAL DUE PROCESS STANDARDS.
Basic facts: A bank had to give notice (service of process) to anyone who had an interest in its common trust, this could be thousands, some only had potential interests in the trust, and the court held it to different standards of required service of process, which guides service of process standards today.
Court outlines basic constitutional standards for adequate notice
Notice must reasonably convey required information, and it must afford a reasonable time for those notified to make an appearance. – Mullane
Court has different holdings which are satisfactory for different groups as follows:
Personal service (i.e. in-hand service) of written notice is always adequate in any type of proceeding
“Constructive” service of process by publication (in a newspaper) is not a reliable means of fulfilling constitutional standards for people who are known, but is acceptable if the people are either missing, unknown, or their interest in the case is contingent or in the future.
For large classes of known people, reasonable means such as mail may be employed, but publication or “constructive” notice is not adequate, AND other methods might be required.
Other case holdings of inadequate notice:
Green v. Lindsey – can’t just post papers on the tenant’s door
Jones v. Flowers – Certified mail followed by posting notice if the mail came back unclaimed was held inadequate
Implementing the Due Process Standard: Statutes and Rules Governing Service of Process
For Federal Court Rule 4 governs proper service methods. For states use their statutes.
Some practicalities of service: Who, what, and when?
What gets served on the defendant?
Under FRCP 4(c)(1), the COMPLAINT AND a SUMMONS must be served together on a defendant.
Contents of a proper summons are described in FRCP 4(a).
Who serves process on the defendant?
Under FRCP 4(c)(1), the plaintiff is responsible
However, plaintiff does not have to serve it themselves, “any person who is at least 18 years old and not party may serve a summons and complaint” – FRCP 4(c)(2)
Plaintiff may not serve defendant himself as he is a party.
Multiple unrelated parties must be served separately.
When must service be made?
Under FRCP 4(b) the complaint and summons must be served after the complaint is filed.
Furthermore, under FRCP 4(m), a court must dismiss an action if service is not made within 120 days after filing.
If plaintiff shows good cause for failure to make service, the court must grant an extension for an appropriate period. – FRCP 4(m)
If no good cause, court may still extend, but also may dismiss at its discression. –FRCP 4(m)
Dismissal for failure to make timely service does not bar plaintiff from filing a new action.
Serving Natural persons under the Federal Rules
FRCP 4(e) provides 4 methods of service to an individual
Deliver papers to defendant personally – FRCP 4(e)(2)(A)
Leave summons and complaint at defendants dwelling with someone of suitable age and discretion who resides there – FRCP 4(e)(2)(B)
Deliver the summons and complaint to an authorized agent of the defendant – FRCP 4(e)(2)(C)
Any other method outlined by the state or federal court in the state where service is made OR the state where the federal court sits – FRCP 4(e)(1)
Serving corporations under FRCP 4
Rule 4(h) lists 3 methods
Delivering a copy of summons and complaint to an officer, managing agent, or a general agent of the entity – FRCP 4(h)(1)(B)
Delivering papers to an agent authorized by law to receive service of process, ex. some states allow the states Secreatry of State to be served for actions doing business in that state. – FRCP 4(h)(1)(B)
Any other method outlined by the state or federal court in the state where service is made OR the state where the federal court sits – FRCP 4(h)(1)(A)
Service of Other Entities
Municipalities, Cities, etc.
Serve the city’s chief executive officer (usually the mayor) – FRCP 4(j)(2)
Under FRCP 4(i)(2), serve the United States as outlined by FRCP 4(i)(1), and also a copy to the agency by registered or certified mail
Law Firms, Partnerships, Corporations
Follow service of corporations above (FRCP 4(h))
Service on parties outside the United States
FRCP 4(f) provides several methods for service process on individuals in other countries in federal cases
As provided by international agreements, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. – FRCP 4(f)(1)
This involves sending the documents to a designated Central Authority in the country where service is made, this completes service.
Using the methods for service of process in the country where service is made – FRCP 4(f)(2)(A)
By personal delivery, unless prohibited in the country where service is being made. – FRCP 4(f)(2)(C)(i)
By a form of mail requiring a signed receipt, unless prohibited by the law of the country where service is being made – FRCP 4(f)(2)(C)(ii)
By seeking instructions and following them from an appropriate authority in the country where service is made through a letter of request – FRCP 4(f)(2)(B)
By seeking a court order for alternative means of service – FRCP 4(f)(3)
Waiver of Service of Process
The plaintiff may ask defendant to waive formal service (and all its technicalities) – FRCP 4(d)
Plaintiff sends the defendant a notice of action with two copies of the waiver form, the complaint and a prepaid envelope for returning the waiver. – FRCP 4(d)(1).
Antecedents of Modern Pleading: No jurisdiction still follows these principles, this is only to help understand modern principles
Common Law Pleading
Written pleadings required to “plead the issue”
Required to get writ from King
Over time specific writ became associated with certain legal theories, based on their form, giving rise to elements
These forms of action became strict and if you didn’t follow them, no matter how small the variance, your whole case would fail
The strictures of common law forms and courts gave rise to courts of equity.
King issued bills of complaint
Other bills for various action became established as well.
These bills and courts soon became just as strict and inequitable as the common law courts, so reform resulted
Code Pleading – for states who are Code Pleading States
Reform from the too strict common law and equity pleading led to a written “field code” of civil procedure
To file a cause of action, all that was required was “fact pleading” whereby a pleader simply had to state ‘facts constituting a cause of action in ordinary and concise language”
Facts required under “Fact pleading”
Courts wanted “dry, naked, actual facts” to try to cut down on conclusions of law,
However courts also didn’t want too much evidence to be required either.
The Original Federal Baseline: “Notice Pleading”
“A Short and plain statement of the claim showing that the pleader is entitled to relief” – FRCP 8(a)(2)
Generally this was a very liberal standard and was allowed errors so long as the claims, entitledment to relief, and theory of claim were stated.
Stating a claim under this standard was not required to be exactly stated so long as it can be reasonably implied
ENTITLEMENT TO RELIEF
The rules require a claim to show that the pleader is entitled to relief. Showing this requires facts that satisfy the elements of the substantive law of the claim.
This also means you MUST identify the substantive law you are suing under.
THEORY OF THE PLEADINGS
There must be a substantive rule under which you can obtain relief. It is in your best interest and primary responsibility for the party to assert the theory themselves
However, courts may also find their own theory of relief in the law, regardless of if you have asserted it.
Truth of factual allegations
The facts stated in a complaint are not necessarily true, but are assumed to be true for the purposes of a motion to dismiss for failure to state a claim.