Civil Procedure Outline - Service of Process/Notice
- Service must comply with the relevant rule (state rule or FRCP 4) and due process (5th and 14th Amendments).
- To satisfy due process, the form of notice used must be reasonable in light of the practicalities and peculiarities of the specific case. (Mullane).
- Intro to the Requirements of Notice- The D must be given adequate notice of the suit through proper service of process.
- 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.
- 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.
- 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.
- Failure to report to court after receiving notice results in a default judgment against the absent party.
- 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.
- 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.
- 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".
- Notice by publication doesn't work, but it can be sufficient if there is no other way or if property was forfeited.
- Notice needs to be practical, not perfect.
- If a good many individuals are notified, odds are good that any problems will be uncovered.
- If some interests are conjectural, there is no need to do great searching.
- Mennonite Board v. Adams
- 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.