Yeazell,
pp. 184-191: Notes and Problems on Service of Process
1. So if you don’t
waive service, you have to pay for the more expensive second try. Plus, you get extra time to respond if you
waive service. If service isn’t waived
or can’t be waived, then you get into the more formal requirements.
2.
a. First, the plaintiff
must file a complaint with the court.
Then the plaintiff presents a summons to the clerk to sign and
seal. The plaintiff sends to the defendant
by first class mail Forms 1-A and 1-B along with two copies of the complaint
and a self-addressed stamped envelope.
b. The lawyer
should say that there are good reasons to go ahead and waive service of process
because of the cost of formal service and the benefit of having longer to
respond. Even if the defendant plans to default,
waiving service won’t affect that decision.
c. The defendant
has at least until October 1st to respond.
d. If service of
process is waived, the defendant has 60 days from the date the waiver request
was sent to respond instead of 20 days from the date formal process is served;
therefore, the plaintiff’s motion to enter a default should be denied.
e. This is when
the plaintiff should move to enter a default, and it would be successful.
f. The plaintiff
shouldn’t request a waiver of service, because it
would open the door to the defendant responding after the statute of
limitations had already expired.
g. The
instructions on the reverse side of Form 1-B explain that “[i]t
is not good cause for a failure to waive service that a party believes that the
complaint is unfounded, or that the action has been brought in an improper
place or in a court that lacks jurisdiction over the subject matter of the
action or over its person or property”.
The defendant was told that even if the lawsuit has no merit, he must
waive service of process or else incur the costs.
h. It appears
that the
i.
The plaintiff must know what state the defendant is
in, because the proper form of service of process may vary by state.
3.
a. The plaintiff
should try to show good cause for the failure, because then under Rule 4(m) the
court may extend the time limit.
b. It would seem
that the court has the discretion to extend the period for service of process,
but if the plaintiff shows good cause the court must extend this time
period.
4.
a. So it appears
that notice is necessary but not sufficient for personal jurisdiction.
b. Since waiving
service doesn’t keep a defendant from making jurisdictional arguments, the defendant
can waive and then make a jurisdictional argument that he would probably win.
c. Here are the
four tiers:
i.
Personal jurisdiction over anyone whom the forum’s state
court would have jurisdiction
ii.
Personal jurisdiction over someone joined under Rule
14 or 19 (including the 100-mile bubble)
iii.
Personal jurisdiction over anyone in the country
when a statute says that’s possible
iv.
Personal jurisdiction over foreign defendants who
don’t have minimum contacts with any one forum but have minimum contacts when
aggregated over all the states
5. Here are
issues in regard to service process on foreign defendants.
a. The Hague
Convention allows people to serve process on foreign defendants.
b. There may be a
problem due to delays occurring because translation of the documents is
necessary.
c. The plaintiff
should submit her request to serve process to
d. The defendant
might raise the defense that the service of process was illegal in the defendant’s
own county even though it was legal in the
6.
a. Sewer service suxx!
b. Defendants can
be “wily”.
c. Yep, the
Westlaw guy showed us that one.