Yeazell, pp. 184-191: Notes and Problems on Service of Process

 

1.     So if you donít 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 isnít waived or canít 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 wonít 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 plaintiffís 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 shouldnít 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 ď[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 propertyĒ.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 United States is excluded from the group of possible parties to a suit that may waive service of process.

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 doesnít 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 forumís 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 thatís possible

                                                         iv.      Personal jurisdiction over foreign defendants who donít 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 Italyís Central Authority.If the plaintiff uses mail service, she risks having this service found to be inadequate under Rule 4(f) because it is illegal in Italy.Itís probably not worth running that risk if you can just seize assets in the United States.If there are no assets in the United States, the risk is definitely not worth running.You should do things the right way.

d.     The defendant might raise the defense that the service of process was illegal in the defendantís own county even though it was legal in the United States.Thus, the defendant would argue, the judgment is not binding in its home country.

6.      

a.      Sewer service suxx!

b.     Defendants can be ďwilyĒ.

c.     Yep, the Westlaw guy showed us that one.

 

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