Service of Process

I'd like to try to hit upon in this post all the little nuances that the MBE might test on the topic of service of process. And it all begins with the reasons why there is even a requirement that a defendant is served with process. 

A defendant is entitled to notice that he/she has been sued. The notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the action." Both a summons and a copy of the complaint must be served. 

Who may serve process encompasses a rather large set of people. Anyone who is at least 18 years old and is not a party to the action may serve process. This process must be served (if the defendant is to be served within the United State) within 90 days of the filing of the complaint. The 90 period may be extended for good cause. 

There are numerous ways by which process might be served. The simplest is personal service. For personal service, process is given to the defendant personally. A commonly tested method other than personal service is substituted service. Substituted service, as the same suggests, is a substitute for personal service. Service is effected at the defendant's "usual place of abode," with someone of suitable age and discretion who resides there. Substituted service may be used even if personal service is possible. 

Another method for serving process is to deliver to the defendant's agent. This is most common when service is in the scope of agency (for example if the defendant, by contract, appointed an agent to receive process.)

It's important to note that along with the federal rules above, methods for serving process that are permitted by the law of the state where the federal court sits or the law of the state where service is made are also permitted. 

The rules differ a bit when serving process on a business organization in the United States rather than on an individual. A business organization may be served by delivering a copy of the summons and complaint  to an officer (for example, the CEO), or by using any method permitted by either the state where the federal court sits or the state where service is to be made. 

If serving a minor or incompetent person in the United States, service may be made only by a method permitted by the law of the state in which service is to be made. if serving anyone (adult or minor) in a foreign country, any method allowed by international agreement may be used. Lacking such an agreement, it's allowable to look towards both US law and foreign law provided that any method used is subject to the constitutional requirement that the method is reasonably calculated to provide notice to the affected party. 

Service of process can be waived. Plaintiff requests a waiver from defendant by mailing defendant a notice and a request to waive service. Plaintiff must include a copy of the complaint and two copies of a waiver form, with a pre-paid means of returning the waiver. Defendant then has 30 days to waive (if located within the United States) or 60 days (if located outside of the United States). Waiver is effective once plaintiff files the waiver with the court.

If defendant chooses not to return the waiver form (so that plaintiff is required to serve defendant personally or by substituted service), defendant will be required to pay the costs of service if defendant did not have good cause for not returning the waiver. 

As mentioned above, personal service occurs when the defendant is served personally. There's an important exception to keep in mind: if the defendant goes to a state to appear as a party, witness or attorney in a different civil case in that state, defendant cannot be served with process for a civil case in federal court in that state. This is a type of immunity from service that has shown up in questions on the exam.