Civil Procedure Class Notes 9/24/03


We will start subject matter jurisdiction probably before Fall Break.


We’ll have to make up certain classes.   Awwwwwwwww…grumble grumble grumble groan


Mullane took us into a different constitutional issue that is closely related to, though not identical to, personal jurisdiction: notice.  The result in Mullane is that the lawsuit gets dismissed not because the forum didn’t have jurisdiction over the defendants, but rather because the defendants were not given adequate notice.


Rule 4(d)


Rule 4 is a big rule and you don’t have to memorize it.  Also, it only applies to federal cases, and there may be 50 different sets of rules for the 50 states.


It’s not something to memorize, but you need to be good at dealing with the language of a rule like this.


Let’s go through Yeazell’s Rule 4 questions.


What do you do if you want to commence a suit with minimum cost?  There is an appendix of forms attached to the Federal Rules so that you don’t have to make up your own forms.  What’s in the form just comes right out of what the rule itself says.


Form 1-A is the “Notice of Lawsuit” and Form 1-B is the form that the defendant signs and returns.


So you ask for the waiver of service under Rule 4.


What would happen if the defendant ignored the requested waiver of summons?  You don’t have to waive, but there is an incentive for you to waive.  You get more time to respond if you waive, and there is also a lower cost.  The defendant has a duty to avoid unnecessary costs; if you don’t waive, those costs will be imposed on you.  What are those costs?  It’s the cost of hiring a process server, like a magistrate, sheriff, or a private server.  This may cost several hundred dollars.


Costs and fees are two different things, so far as we’re going to think about it for now.


In 4(d)(1), we’re told that the defendant’s acceptance of the waiver doesn’t mean he waives his jurisdiction or venue challenges.


If the defendant gets a request of waiver of service of process on September 1st, when does he need to respond?  In 4(d)(2)(F), the defendant will have a reasonable time to return the waiver, which means at least 30 days.  In other words, the defendant has until at least October 1st to respond.  You can’t shave time off of this requirement.


Say the defendant gets a request dated September 1st that the defendant signs and returns by September 20, but doesn’t file an answer to the complaint.  What if the plaintiff files a motion to enter a default because the defendant didn’t answer in 20 days?  This motion is no good.  The defendant has 60 days to respond if he returns the waiver within 30 days.  The 60 day rule is the “carrot”, as opposed to having to pay the costs and fees, which is the “stick”.


Say three months go by and the plaintiff has received no response?  The plaintiff should personally serve the defendant.


What if the statute of limitations is about to run out?  Should you use the waiver of service?  Rule 3 says that “A civil action is commenced by filing a complaint with the court.”  Strangely enough, this doesn’t necessarily help you with statute of limitations.  The Supreme Court has held that Rule 3 does not affect the statute of limitations.


Mistakes look even bigger blown-up.


What if the defendant has a jurisdictional argument?  Well, you don’t lose anything by doing waiver of service.  You can still raise jurisdictional arguments and arguments on the merits.


Can you get a waiver of service from the United States Government?  Do you have to serve the United States Government?  Yes, we do.  How do we know?  Rule 4(d)(2) tells us exactly to whom we can waive.  Noticeably absent is the United States Government.


Some questions are answerable in civil procedure.  When there is a rule that controlled, there is a clearly defined answer.


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