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

Civil Procedure Rhee Fall 2016

Service of Process in Federal Courts

Rule 4 rule blocks

Rule 4(a) Summons

Summons to the court must A) name the court and the parties B) be directed to the defendant C) state the name and address of the plaintiff’s attorney D) state the time which each defendant must appear to defend E) notify the defendant that failure to appear will result in default judgment F) be signed by the clerk G) bear the courts seal. Rule 4(a)(1)(A)-(G). If no service is made, the defendant may file a motion to set aside any default judgment under rule 55(c) and rule 60(b), which allow for relief from default judgment due to the lack of proper service of process. Rule 55(c); Rule 60(b). The summons must then be signed and sealed by the court to be given to the plaintiff, who will serve copies of the summons to the defendant. Rule 4(b); Form 3. Complaint and summons must be served together. Rule 4(c)(1).

Rule 4(c) Service (time)

The plaintiff is responsible for making sure the summons is served within 120 of the complaint being filed, and if not, the court must dismiss the action without prejudice unless the plaintiff shows good cause for failure to serve, for which the court may grant an extension. Rule 4(c)(1); Rule 4(m). If no good cause is shown, an extension may still be issued but it is at the discretion of the court. Rule 4(m). Dismissal will not bar the plaintiff from new action but they will risk SOL problems and have to pay a new filing fee. Rule 4(c); Rule 4(m). If there is an objection for an improper service of process, it must be raised either by the pre-answer motions or in the answer to avoid tactical maneuvering around SOL. Rule 12(g)-(h).

Rule 4(c) Service (general)

The person serving the process must be by someone over 18 and not a party to the suit. Rule 4(c)(2). Even if the service deviates slightly from the state statute for service of process, it is still seen as “substantial compliance” unless the court can find that the service of process violates due process (deprivation of life, liberty, or property) and has deprived a party of its right to notice. Mullane. Even if there is substantial compliance, however, the service is insufficient if not made to the proper person. Hukill. Also, service is required even if the party being served is aware they are being sued. Hukill. In federal court, a party may choose to serve the individual or corporation being sued under the state law for serving summons or under the federal rules. Rule 4(e)(1); Rule 4(h)(1)(A). If the method used is authorized by state law and not by federal law, a federal court would accept that even if it does not recognize it is proper service. Hukill. Service must be reasonably calculated under all the circumstances to apprise interested parties and afford them an opportunity to present their objections. Mullane. In order to set aside a default judgment, courts consider A) was default judgment willful? B) Will setting it aside prejudice the plaintiff? C) Does the defendant have meritorious defenses? Rule 60(b). Default judgment is also voided if service is never made or personal jurisdiction is lacking. Rule 60(b).

The three part test for determining is compliance is sufficient is:

Is there a statute authorizing the method of service employed?
Have the requirements of the statute been observed?
Have the fundamental due process elements been met? Hukill.

(Circuit Split)

Pg347 note 3

Majority: Proper service is required for a valid judgment

Minority: (Virginia) Insufficient service is okay in order to get a valid judgment.

Service Penalties Rule Block

If service is not done or not done properly, defendants can move for Rule 12 pre-answer motions to dismiss the action for insufficient process or insufficient service of process. Rule 12(b)(4); Rule 12(b)(5). The defendant may have knowledge that they are being sued, but process must still be served properly for them to be unable to dismiss the case for faulty service of process. Hukill. All subsequent papers in the trial are to be served under Rule 5(b). Rule 5(b). Parties who issue service must do the most that they can to make sure that the party to be served has the most notice available. Mullane; Green; James. The process of a mere gesture is not enough to constitute notice, but it is a fact specific issue. Mullane. The method of service must satisfy be constitutionally sufficient under the Fourteenth Amendment and also adhere to any procedures in a state statute. Mullane.

Rule 4(d) Waiving Service

The party being served has a duty to avoid unnecessary expenses of serving the summons, unless you have really good excuse. Rule 4(d)(1). The notice and request to waive service must:

Be in writing and be addressed:

To the individual defendant

ii. For a defendant of a corporation (officer, managing or general agent, or any agent authorized to receive process). Rule 4(d)(1)(A)(i)-(ii)

Include the name of the court where complaint was filed. Rule 4(d)(1)(B)
Include a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form. Rule 4(d)(1)(B).
Inform the defendant of the consequences of waiving and of not waiving service. Rule 4(d)(1)(D); Form 5.
State the date when the request was sent. Rule 4(d)(1)(E).
Give the defendant 30 days after request was sent to respond, or 60 days if outside the US. Rule(d)(1)(F)
Sent by first class mail or other reliable means. Rule (d)(1)(G).

If a waiver is received by the serving party, it must be filed with the court for it to be effective. Rule 4(d)(4).

(Rule 4(d)(2) Failure to Waive)

If a defendant fails to sign the and return the waiver papers, the plaintiff must still formally serve the defendant and the court must impose on the defendant A) expenses later incurred in making service and B) reasonable expenses, including attorney fees, of any motion required to collect those expenses. Rule 4(d)(2)(A)-(B).

If the defendant does sign the waiver, he now has 60 days (or 90 is outside the US) to answer the complaint instead of the usual 21 days. Rule 4(d)(3). Once a

ne in due diligence to serve the defendant, yet no service was made. Webster Industries. In this case, alternative means of service are usually acceptable, such as substitute or publication service, but the heavy burden is on the serving party to prove that everything possible had been done in the attempt to serve originally. Webster Industries.


The Scope of Discovery

Rule 26(a)(1) Required Initial Disclosures Rule Block

A party must provide certain information to the other parties without awaiting a discovery request. Rule 26(a)(1)(A). There are several items that are not available for initial discloser. Rule 26(a)(1)(B). This information includes

The name, address, and telephone number of each individual likely to have discoverable information that disclosing party may use to supports its claims or defenses. Rule 26(a)(1)(A)(i).
A copy of all matter a disclosing party will use to support its claims or defenses. Rule 26(a)(1)(A)(ii).
A computation of each category of damages claimed by the defendant and the documents for which each computation. Rule 26(a)(1)(A)(iii).
Any insurance document that any insurance company would be liable for. Rule(a)(1)(A)(iv).

They do not have to be produced unless directed by order or otherwise stipulated. Rule 26(a)(1)(A). There are three delay buttons to keep initial disclosures from coming about. Flores. One is stipulating the agreement between both parties to delay the disclosure. Flores. The second is having a court direct the delay, but for them to do that there must be good reason, such as unreasonable actions by the requesting party. Flores. The third is to move for the court to postpone the disclosure until the dispositive motion for delay has been decided on. Rule 26(a)(1)(C). A good test for showing that a party needs to disclose the initial information is if they have already agreed to disclose other things required by the initial disclosure. Flores. Courts should rule on pretrial motions before discovery is started. Chudasmas. Initial discloser is 83 days after appearance by defendant or 113 days after the complaint is filed. Rule 26(a).

Rule 26(a)(1)(C) Time for Initial Disclosures Rule Block.

A party must make initial disclosures at or within 14 days after the parties Rule 26(f) conferences. Rule 26(a)(1)(C). This conference must be held as soon as possible or at least 21 days before a scheduling conference is to be held. Rule 26(f)(1).