Select Page

Civil Procedure I
West Virginia University School of Law
Rhee, William

Civil Procedure Rhee 2013
Notice and Methods of Service of Process
Notice gives the defendant an opportunity to come in and make her defense.
Service on the defendant must be both constitutionally sufficient and authorized by a statute or rule of the court system in which the case is filed.
I.                   The Constitutional Standard for Adequate Notice
14th amendment, which requires states to provide parties with due process of law, also requires a defendant receive notice of a suit.
Grannis v. Ordean: 234 U.S. 385
·         The fundamental requisite of due process of law is the opportunity to be heard
Mullane v. Central Hanover Bank & Trust Co.: 339 U.S. 306 (1950)
·         Proceedings involved a number of trusts; some of the beneficiaries of the trust were known and the bank had their addresses in their files; however, some were not known and it would have been very expensive to figure out who they were and where they were
·         The court said that the known beneficiaries should be given individual notice by mail
·         Court recognized that the burden to identify the other beneficiaries and finding them would be unreasonable
o   Court approved notice by publication as to these beneficiaries
·         Adequate notice depends on the circumstance of each case
·         Due process may be recognized with less than direct service on the defendant
·         Defendants are entitled to notice “reasonably calculated under all the circumstances to apprize interested parties of the pendency of the action and afford them an opportunity to present their objections”
·         Held:
o   1. After reasonable search for correct party, notice must be served so as to reasonably alert party of lawsuit, AND
o   2. That service of process must satisfy statute as well as constitutional due process standards
·         Other holdings:
o   Personal service of written notice is always adequate in any type of proceeding
o   Constructive service of process by publication 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
o   For large classes of known people, reasonable means such as mail may be employed, but publication or constructive notice is not adequate, AND other means might be required
Basic constitutional standard for adequate notice from Mullane:
·         The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. Mullane
·         The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals. American Land Co. v. Zeiss (U.S.)
Greene v. Lindsey: 456 U.S. 444 (1982)
·         Involved service of process in an eviction action
·         A Kentucky statute authorized the sheriff to deliver the notice to the tenant, or, if no one was home, to post the paper’s on the tenant’s door
o   Such posting often failed to reach the tenant in large, multi unit buildings b/c children and other tenants would rip them down
·         There was easier method of providing service b/c process server could mail notice to the tenant
·         Court held that posting was not constitutionally adequate without sending notice to the tenant
Jones v. Flowers: 547 U.S. 220 (2006)
·         Arkansas statute authorized notice in a tax sale proceeding by certified mail to the owner of the property, followed by publication if the letter was returned unclaimed.
·         Court held this notice inadequate under Mullane
·         Someone who actually wanted to alert the owner that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that could reasonably be done
II.                Statutes and Rules Governing Service of Process
What gets served on the defendant?
·         Under FRCP 4(c)(1), the COMPLAINT and a SUMMONS must be served together on a defendant
Who serves process on the defendant?
·         Under FRCP 4(c)(1), the plaintiff is responsible
·         FRCP 4(c)(2) says plaintiff does not serve it herself, but any person who is at least 18 years old and not a party may serve a summons and complaint
When must service be made?
·         Under FRCP 4(b) the complaint and summons must be served after the complaint is filed
·         FRCP 4(m) says a court must dismiss the action if service is not made within 120 days of filing
·         FRCP 4(m) – If plaintiff shows good cause for failure to make service, the court must grant an extension for an appropriate period
·         Court has discretion to extend or dismiss if there is no good cause under Rule 4(m)
·         Plaintiff can file a new action if it is dismissed for failure to make timely service
Serving Natural Persons under the Federal Rules
·         FRCP 4(e) provides 4 methods of service to an individual
o   Deliver the papers to the defendant personally wherever she can find the defendant – Rule 4(e)(2)(A)
o   Leave the summons and complaint at the defendant’s dwelling or usual place of abode with someone of suitable age and discretion who resides there – Rule 4(e)(2)(B)
o   Deliver the summons and complaint to an agent of the defendant authorized by appointment or by law to receive service of process – Rule 4(e)(2)(C)
o   Follow the rules for service of process of the state where the federal court sits or the state in which service of process is made – Rule 4(e)(1)
Serving Corporations under FRCP 4
·         Rule 4(h) prescribes 3 methods for serving a corporation, partnership, or association
o   Delivering a copy of the summons and complaint to an officer, a managing agent, or a general agent of the entity – Rule 4(h)(1)(B)
o   Delivering the papers to an agent authorized by law or by appointment to receive service of process – Rule 4(h)(1)(B)
o   Serving process under state rules for serving corporations, in either the state where the federal court sits or in the state where service is made – Rule 4(h)(1)(A)
§  Service may be made in the manner prescribed by 4(e)(1) for serving individual
Service on Other Entities
·         Municipalities, Cities, etc.
o   Serve the city’s chief executive officer (usually the major) – Rule 4(j)(2)
·         Federal Agencies
o   Under FRCP 4(i)(2), serve the United States as outlined by 4(i)(1), and also a copy to the agency by registered or certified mail
·         Law Firms, Partnerships, Corporations
o   Follow service of corporations above in 4(h)
Service on Parties Outside the United States
·         FCRP 4(f) provides several methods for service process on individuals in other countries in federal cases
o   As provided by international agreements, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents – Rule 4(f)(1)
o   Using the methods of service of process in the country where service is made – Rule 4(f)(2)(A)
o   By personal delivery, unless prohibited by the law of the country where service is made – Rule 4(f)(2)(C)(i)
o   By a form of mail requiring a signed receipt, unless prohibited by the law of the c

al allegation of the complaint and asserts defenses and sometimes claims by a defendant
I.                   The Original Federal Baseline: “Notice Pleading”
FRCP 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief
·         Claims
o   Stating a claim under this standard was not required to be exactly stated so long as it can reasonably be implied
·         Entitlement to Relief
o   The rules require a claim to show that the pleader is entitled to relief
o   Showing this requires facts that satisfy the elements of the substantive law of the claim
o   This also means you must identify the substantive law you are suing under
·         Theory of Pleadings
o   There must be a substantive rule under which you can obtain relief
o   It is in you 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 lad, regardless of whether you assert it
·         Truth of Factual Allegations
o   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 
·         Disputing Factual Allegations
o   If a party wishes to dispute factual allegations of a claim without going to trial, in addition to their motion to dismiss for failure to state a claim, they can support their motion with a signed affidavit of someone disputing the facts based on their own personal knowledge
§  Providing an affidavit in support of a motion to dismiss under 12(b)(6) converts it into a motion for summary judgment under Rule 56
Conley v. Gibson: 355 U.S. 41 (1957)
·         The accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief
·         Creates the notice pleadings standard
·         Under this standard, there must be some pleading of facts, and also it is okay to make conclusory statements, so long as the facts show the pleader is entitle to relief
·         Very relaxed standard and therefor wasn’t good at screening for frivolous claims
Inconsistent and Alternative Pleading – Pleading is allowed alternatively and hypothetically
·         If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient – Rule 8(d)(2)
·         Inconsistent claims are allowed so long as the pleader reasonably believes in good faith that either might have evidentiary support – Rule 11(b)
Form of Pleadings
·         Under Rule 10(b), complaints require numbered paragraphs and that each claim should be stated in separate counts
·         However this too is subject to Rule 8(e), that pleadings should be construed so as to do justice, and that small errors of form are unlikely to be fatal