LAW 521-002 – Civil Procedure I

Notice


Due process requires notice and opportunity for hearing appropriate to the case.

Personal service (someone hading to the defendant in person) is a classic form of notice that is always ok.

Due process requires notice to be reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford an opportunity to present objections.

Mere gesture is not sufficient; it must seek to actually inform parties.

Publication is okay only if it is not reasonably possible or practical to give more adequate warning.

Reference: Mullane

Rule 12(b)(4) & (5) permit dismissal for lack of process or lack of service of process.

  • Lack of process means some defect in the paperwork
  • Lack of service of process means some defect in the way it was served

Under Rule 4(d), one can waive service to receive 60 days from the date of request until an answer is required, as opposed to the default of 21 days.

If a waiver is requested and not granted, the defendant must pay the costs of being served and will only have 21 days to answer the complaint.

Defendants have 30 days to respond to a waiver.

Statute of limitations does not stop until service, so don't try a waiver request if it's close.

Can't ask US Government for a a waiver—must serve both US Attorney and US Attorney General, but they always receive 60 dyas to answer.

There are a lot of complicated rules for how to do the summons form and stuff, but I doubt that's important, right?