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