"Notice of Summons Massachusetts - PowerPoint"
CIVIL PROCEDURE 2002 Class 7 September 11, 2002 Professor Fischer WRAP UP: Class 6 (9/9/02) We learned how a civil action is commenced (Rule 3) and why date of commencement matters. We learned what a pleading is (Rule 7) and the various types of pleadings in civil actions We discussed possible purposes of pleading (e.g. notice, siphoning out sham claims, narrowing issues) We learned that, under the FRCP as interpreted by the Supreme Court in Conley v. Gibson (focusing on 8(a) and 8(f)), notice is the primary function of pleading We learned the requirements for pleading and construction of pleaadings in Rule 8(a) (jurisdictional; “short and plain statement of claim”; demand for judgment that Ids remedies), 8(e) (simplicity, conciseness, alternative pleading possible), and 8(f) (pleadings must be construed so as to do substantial justice) Liberality of Notice Pleading Note that notice pleading is a very liberal pleading standard A pleader does not have to plead legal theories The notice pleading standard for pleadings means that it is generally hard to succeed on a rule 12(b)(6) motion to dismiss pleadings for failing to disclose a cause of action Today’s Class We will discuss formal requirements for the complaint under the FRCP We will learn what constitutes valid service of the complaint under the FRCP, as well as the purpose underlying the service rules Form of Pleadings Rule 10 (not assigned) sets out formal requirements Caption listing name of court, title of action, docket number Separate numbered paragraphs for claims and defenses Can adopt earlier paragraphs by reference Exhibits can be attached to pleading SERVICE OF PROCESS WHAT IS SERVICE OF PROCESS? SERVICE OF PROCESS WHAT IS SERVICE OF PROCESS? -- delivery of the initial notice to a D of the filing of a lawsuit against him WHAT IS THE PURPOSE OF SERVICE? Purpose of Service of Process To comply with DUE PROCESS OF LAW and NOTIFY a D that he has been sued What options does a D have for responding to valid service of the complaint? What happens if the defendant does not respond in a timely manner to valid service of the complaint? D’s options Ignore service (judgment in default) Validly serve answer within time limits of under Rule 12(a)(1) Move to dismiss under Rule 12(b) Requirements for Service of Process When? What? Who? How? Let’s start with the WHEN question. WHEN, in relation to filing of a complaint, must it be served? REQUIREMENTS FOR SERVICE OF PROCESS IN FEDERAL COURTS A. WHEN? TIME REQUIREMENTS - FRCP 4(m) within 120 days after filing unless “good cause” for failure B. WHAT? DOCUMENT REQUIREMENTS C. WHO? WHO MUST SERVE THE REQUIRED DOCUMENTS YET ANOTHER HYPO Sharon files her complaint against Nigel with the Federal Court for the District of Massachusetts and obtains a valid summons isued by the court. 118 days after filing, she steps out into a busy street to point Carl, a 45 year old process server in the direction of Nigel’s house. Sharon is hit by a giant SUV and left in a coma for three days. Carl is traumatized and never serves the summons/complaint. Nigel finds out from a mutual friend that Sharon filed the complaint. The friend tells Nigel exactly what Sharon’s claim is against him. You are the judge. Should you dismiss Sharon’s case 122 days after filing? Why or why not? REQUIREMENTS FOR SERVICE OF PROCESS IN FEDERAL COURTS A. WHEN? TIME REQUIREMENTS - FRCP 4(m) within 120 days after filing unless “good cause” for failure B. WHAT? DOCUMENT REQUIREMENTS - FRCP 4(c ) (1) - COMPLAINT and SUMMONS (see 4(a) for form of summons, 4(b) for issuance of summons) C. WHO? WHO MUST SERVE THE REQUIRED DOCUMENTS - FRCP 4(c) (2) - adult appointed by P or (rarely) court appointed server (req’d for paupers, seamen) MORE SERVICE REQUIREMENTS HOW? REQUIREMENTS FOR HOW DOCUMENTS MUST BE SERVED ARE IN FRCP 4(e)-4(j). FOR THIS COURSE, YOU NEED TO BE FAMILIAR WITH FRCP 4(e) (individuals) and 4(h) (corporations) HOW? INDIVIDUALS What are the various methods for service of process on individuals under the FRCP? HYPO Bella believes that Scout is liable to her in negligence. Bella gets her attorney, Finn, to draft a complaint. Bella learns on a Sunday that Scout is departing on Sunday for to Antarctica for three months. She tells Finn. Finn sends a process server, Penny, to the airport where she personally serves Scout with a copy of the complaint she plans to file, and a draft summons. First thing Monday morning, Finn files the complaint with the federal court for the district of Anystate. Is service of process proper under the FRCP? ANOTHER HYPO Now Bella wants to sue Paige. She properly files a complaint with the federal district court, gets a summons issued by the court that same day, and, six days later, a process server serves the complaint on Bella’s behalf by delivering a copy of it plus the summons to Paige’s attorney, Caroline. Is service proper under the federal rules? Why or why not? Do you need additional information to answer? If so, what? STILL ANOTHER HYPO You want to sue a homeless man, Darren in federal court in the District of Columbia. You properly file a complaint. Your private investigator tells you that Darren spent last night in a shelter at 2247 E Street NW. Under the FRCP, can your process server legitimately serve Darren with a complaint filed in the U.S. District Court for D.C. by leaving a copy of the complaint and summons with Rose, the director of the shelter, who lives at the shelter and is aged 53? Assume the D.C. law of service for civil actions brought in D.C. Superior Court = FRCP. SERVICE ON INDIVIDUALS IN U.S. (NOT INFANTS, INCOMPETENTS) PERSONAL SERVICE LEFT AT DWELLING HOUSE w/ PERSON OF “SUITABLE AGE AND DISCRETION” DELIVERY TO AGENT APPOINTED TO RECEIVE SERVICE- e.g. attorney (if authorized) IN A WAY SPECIFICALLY AUTHORIZED BY APPLICABLE FEDERAL LAW IN A WAY SPECIFICALLY AUTHORIZED BY STATE LAW WHERE DISTRICT COURT SITS OR WHERE SERVICE WILL TAKE PLACE - e.g. service at place of business WAIVER OF SERVICE How do we serve process on corporations under the Federal Rules? What is the relevant Federal Rule? SERVICE ON CORPORATIONS (IN THE U.S.) UNDER RULE 4(h) DELIVERY TO OFFICER, MANAGING AGENT, OR GENERAL AGENT DELIVERY TO AGENT appointed to receive service of process (and if statute requires by mailing to D) IN A WAY SPECIFICALLY AUTHORIZED BY FEDERAL LAW IN A WAY SPECIFICALLY AUTHORIZED BY STATE LAW WHERE DISTRICT COURT SITS OR WHERE SERVICE WILL TAKE PLACE WAIVER HYPO Jane, the owner of a Ford Explorer that rolled over in an accident, wants to bring a products liability lawsuit against the Ford Motor Company. She files a complaint in U.S. District Court for the Eastern District of Michigan. Can she properly serve the complaint by mailing it to Ford Motor Company headquarters in Dearborn, Michigan? Can she properly serve by delivering the complaint to William C. Ford, Ford’s chairman? WAIVER OF SERVICE What’s waiver of service? What provision of the FRCP governs waiver of service? WAIVER OF SERVICE Waiver is a way of notifying the D of the action while waiving formal service The governing provision is FRCP 4(d). You should be familiar with it. WAIVER OF SERVICE RULE 4(d) HOW DOES P REQUEST A WAIVER OF SERVICE? SUMMARY OF FEDERAL REQUIREMENTS FOR SERVICE OF PROCESS You should know: 1. What service of process is, and what is the purpose for service. 2. Requirements for TIME, DOCUMENTS, IDENTITY OF PROCESS SERVER, MANNER OF SERVICE for individuals and corporations and WAIVER OF SERVICE