Civil Procedure Outline - Service of Process/Notice

    **Abridged Notice**

  1. Service must comply with the relevant rule (state rule or FRCP 4) and due process (5th and 14th Amendments).
  2. To satisfy due process, the form of notice used must be reasonable in light of the practicalities and peculiarities of the specific case. (Mullane).

**Full Notice**

  1. Intro to the Requirements of Notice- The D must be given adequate notice of the suit through proper service of process.
    1. A judgment rendered w/o proper notice is invalid, even if there is a valid basis for jurisdiction.
      • Ex: In Burnham v. Superior Court, there was jurisdiction because the D was in the state. However, he had to also be SERVED while in the state in order for the suit to be valid.
    1. Two factors: "For service to be proper, it must not only comply with the relevant rule, but must comport with due process."
      • Relevant rule: State rules vary, federal rules are under FRCP Rule 4.
      • Due Process: 5th and 14th Amendments
        • Statue must be Constitutional. Even if a P goes above and beyond the statute (even up to personal service), if the statute is unconstitutional, so is the service. (Wuchter v. Pizzutti)
        • The mere fact that the D received actual notice of the suit does not suffice to uphold the validity of service.
    1. Failure to serve or improper service can cause a lawsuit to be time-barred, since often the statute of limitations is tolled only when D is served properly.
    2. Failure to report to court after receiving notice results in a default judgment against the absent party.


  2. Waiving Service- Rule 4 tries to eliminate issues concerning service by inducing the D to waive formal service of the summons and complaint.
    1. FRCP 4(d) allows P to send a copy of the complaint to D by first-class mail accompanied by a "Notice of Lawsuit and Request for Waiver of Summons" and a "Waiver of Summons."
      • D is given 30 days to respond (or 60 if out of U.S.). If signed and returned, no service necessary.
      • This can only be used on certain types of Ds.
    1. Why would a D want to waive service?
      • Rule 4(d)(1)- unless D waives service in a timely manner, "the court may impose on the D…the expenses later incurred in making service."
      • If D waives service, D does not have to answer complaint until 60 days after request for waiver was sent.


  3. Service through Mullane (To satisfy due process, the form of notice used must be reasonable in light of the practicalities and peculiarities of the specific case)
    1. Due process requires "notice reasonably calculated, under all the circumstances, to apprise interest parties of the pendency of the action and afford them an opportunity to present their objections".
    2. Notice by publication doesn't work, but it can be sufficient if there is no other way or if property was forfeited.
    3. Notice needs to be practical, not perfect.
      1. If a good many individuals are notified, odds are good that any problems will be uncovered.
      2. If some interests are conjectural, there is no need to do great searching.
    1. Mennonite Board v. Adams
      1. If the address of the D can reasonably be ascertained by reasonably diligent efforts, notice by publication must be supplemented by notice mailed to the D's last known available address or by personal service.