Service of Process in the US: Rules for Individuals and Corporations, Study notes of Civil procedure

Download Service of Process in the US: Rules for Individuals and Corporations and more Study notes Civil procedure in PDF only on Docsity! Service • Service on individuals o 4 (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:  (2) doing any of the following: • (A) delivering a copy of the summons and of the complaint to the individual personally; • (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or • (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. • What counts as delivering personally in 4(e)(2)(A)? Do the papers have to come into physical contact with the defendant or is it OK if he just sees them (e.g. they are dropped on the ground in front of him)? o Touching not necessary as long as defendant saw them and was aware that there was service attempted  Ex. Defendant hides in house to avoid service, summons/complaint left at the door and server then sees defendant come out to get it, counts as personal service. • How are service rules enforced? o In the proceedings in which service was effected, if you get notice, despite improper service, you can appear and make a motion to dismiss for inadequate service or address improper service in answer o If you default, you can go back to rendering court and get judgment annulled on grounds of improper service o Collateral attack: challenging judgment before another court  For collateral attack to work, defendant must have defaulted in the earlier action  Defendant has waived this defense if they appear in the earlier action Serving corporations or unincorporated associations • 4 (h) Serving a Corporation, Partnership, or Association Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: o (1) in a judicial district of the United States:  (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or  (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and – if the agent is one authorized by statute and the statute so requires – by also mailing a copy of each to the defendant... Docsity.com • Idea of “officer, a managing or general agent,” is that it must be delivered to some agent high up enough to be able to take care of it and do the right thing • Tagging service on an individual is more than just a way of ensuring notice, it is also a way of establishing personal jurisdiction – will discuss later • Tagging an agent for service for corporation (e.g. state official) is also accepted as a method of establishing personal jurisdiction over the corporation o But if this method is used for PJ, you still need to get adequate notice to the corporation o That is why the end of 4(h)(1)(B) speaks of mailing a copy of summons and complaint to the defendant - ensures that there is also notice • Federal courts have held that giving to the secretary of an officer, managing or general agent counts as “delivering” to then officer and so satisfies 4(h)(1)(B) o 4(h)(1)(B) doesn’t mention the need to be delivered “personally,” suggesting summons and complaint doesn’t need to be delivered in-hand to officer/agent. Constitutional restrictions on service • U.S. Const. Amendment V – Due Process – applies to federal government • Amendment XIV. o Section 1. also mentions due process, applies to states • Bill of Rights is a limitation on the Federal government o Fourteenth amendment due process clause applies most limitations in Bill of Right to State governments o Due process requires some method of proper service. • Mennonite Board of Missions v. Adams (U.S. 1983) o Facts: Owner’s house is sold after a failure to pay taxes. Owner of the house received notice of tax-sale purchase through certified mail. During proceedings, notice was posted in the county courthouse and published numerous times. Mortgage company (mortgagee) learned of proceedings after title had passed. The tax-sale purchaser brought suit to quiet title, during which, mortgagee claimed failure of notice o Was there adequate notice to the mortgage company in the first action? o The standard for deeming if Due Process is violated established in Mullane v. Central Hanover Bank & Trust Co.  “An elementary and fundament requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstance, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” o Not true that due process is violated when property is taken from you without knowledge of action if method of notice is reasonable under Mullane o Considerations o Is there an easy, economically sound method of notice that was better than the one used? What is the level of actual interest that the person challenging the method of notice had (i.e. how much did he lose)? Level of sophistication of defendant? Is someone else representing the person’s Docsity.com