Service of Process

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Service of Process by Mind Map: Service of Process

1. Rule 4 sets for the procedure for service of process.

2. In the absence of service of process (or waiver of service) a court ordinarily may not exercise power over a party named as defendant in a complaint.

3. Who must serve

3.1. A plaintiff is responsible for serving the summons and complaint upon the defendant

3.2. May be made by anyone at least 18 years old that is not a party to the lawsuit

4. Time Limit for Service

4.1. Service of the summons and complaint must be within 90 days.

4.2. If plaintiff has good cause whay it was not timely made, court may extend to appropriate period of time

4.2.1. Absent such showing, must dismiss the action w/o prejudice against the defendant or order that service be made in specific time.

5. Methods of Servce

5.1. Generally, Service occurs

5.1.1. In the United States

5.1.1.1. Personally serving the summons and complaint upon the defendant

5.1.1.2. Leaving the summons and complaint at the defendant's usual abode with a person of suitable age and discretion who resides there

5.1.1.3. Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

5.1.2. Outside of the US

5.1.2.1. In any manner internationally agreed upon, which is reasonably calculated to give notice.

5.1.2.1.1. Absent such agreement, or if it is permitted by other means, service on any competent individual outside the US may be effected by any method permitted by the law of the foreign country

5.2. Service on Minors/incompetents

5.2.1. Minors and incompetents must be served according to the way for serving such a person of the state service is made.

5.3. Service on Corporations and Associations

5.3.1. Inside the US

5.3.1.1. Effected by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process

5.3.1.2. If authorized by statute, plaintiff must also mail a copy of summons and complaint to defendant

5.3.2. Outside the US

5.3.2.1. All methods available for service on an individual outside US, except personal delivery.

5.4. Service on the Government and its Agencies

5.4.1. Government

5.4.1.1. Party MUST

5.4.1.1.1. Deliver a copy of the summons and complaint to the US attorney for the district where action is brought, or send a copy by registered or certified mail to the civil process clerk at the US attorney's office

5.4.1.1.2. Send a copy by registered or certified mail to the US Attorney General

5.4.1.1.3. If the action challenges an order of a non-party agency or officer of the US send a copy by registered or certified mail to the agency or officer.

5.4.2. Agency, officer or employee sued in official capacity

5.4.2.1. Party must serve the United states and also send a copy by registered or certified mail to the agency, officer, or employee

5.4.3. Officer or Employee individuall

5.4.3.1. For acts or omissions occuring in connection with duties performed on behalf of the US a party must serve the US and also serve the officer or employee under normal rules for serving an individual.

6. Waiver of Service

6.1. A competent individual, corporation or association that is subject to service has a duty to avoid unnecessary expenses of serving the summons by waiving service

6.1.1. Plaintiff may notify defendant that action has been commenced and request the defendant waive service.

6.1.2. NA to minors, incompetents, gov. entities

6.2. Request

6.2.1. Plaintiff's request must be in writing, addressed to the individual defendant

6.2.1.1. Or a corporation to an officer, managing or general agent

6.2.2. Must be accompanied by a copy of the complaint, two copies of waiver form, and a prepaid means of returning the form

6.2.2.1. Must give reasonable time of at lease 30 days after request sent to return waiver

6.3. Effect

6.3.1. if defendant timely returned a waiver of service before being served, the defendant does not have to serve answer until 60 days after request sent.

6.3.1.1. Incentive to waive service as 21 day time for served defendants to respond.

6.3.1.2. Does not result in waiver of objection to PJ or venue

6.3.2. If agreed, the date on which the plaintiff files waiver is deemed date of service.

6.3.2.1. Must still answer the complaint w/in 60 days of sent.

6.4. Failure to Waive

6.4.1. If defendant fails w/o good cause to sign and return waiver requested, court must impose upon defendant expenses of reasonable expenses of service and motions to collect expenses.

7. Proof of Service

7.1. If not waived, process server must submit proof to court

7.1.1. Generally by affidavit of the process server.

7.1.2. Failure to make does not invalidate service.