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Explain Rule 4(a) of F.C.R.P.
Rule 4 applies to the Summons
- 4A-1 - Contents of summons must:
- - name the court and the parties;
- - be directed to the D;
- - state the name & address of the P's atty or P (if unrepresented);
- - state time within which D must appear and defend;
- - notify D that failure to appear and defend will result in a judgment against D for relief demanded;
- - be signed by the clerk;
- - bear the court's seal
What is Rule 4(a)-2?
Amendments - court may permit a summons to be amended
What is Rule 4(b)?
Issuance - on or after filing complaint, P presents summons to clerk for signing and sealing. If properly completed, Clerk will sign, seal and issue to P for service on the D. Each D must be served a summons (or a copy)
What is Rule 4(c) of FRCP?
General - Service - summons must be served with a copy of complaint. P is responsible for having completed service within the allotted timeframe as dictated by Rule 4(m) and must furnish necessary copies to the person doing the service.
By Whom - Any person at least 18 yrs old who is not a party to the action
By a Marshall or someone specially appointed - At P's request, court may order service be made by a US Marshall or someone specifically appointed by the court. The court must so order if the P is authorized to proceed in forma pauperis (pauper, poor person) or as a seaman.
What is Rule 4(d) of FCRP?
- Waiving Service
- (1) Requesting a waiver - An entity subject to service under Rule 4(e - serving someone within a judicial district of the US), (f - serving an individual in a foreign country), (h - serving a corp., partnership or association) has a duty to avoid unnecessary expenses of serving summons. P may notify D that an action has been commenced and request that the D waive service of a summons. The notice and request must:
- - be in writing and addressed to the D, or
- - for a D subject to service under Rule 4(h), to an officer or any other agent authorized by law to receive service
- - name the court where complaint is filed
- - be accompanied by a copy of the complaint, two copies of a waiver form and a pre-paid means for returning the form
- - inform the D of consequences of waiving and not waiving service
- - state the date when the request is sent
- - give D reasonable time (at least 30 days after request sent - or at least 60 days if sent to the D outside any judicial district of the US) to return waiver; and,
- - be sent by first-class mail or other reliable means
- (2) Failure to Waive
- - if a D located in the US fails, without good cause, to sign and return a waiver requested by P located in the US, the court must impose on the D: expenses latter incurred in making service; and reasonable expenses, including atty fees, of any motion required to collect those expenses.
- (3) Time to Answer After a Waiver - a D who, prior to being served with process timely returns a waiver need not serve an answer tothe complaint until 60 days after the request was sent - or until 90 days after it was sent to the D outside any judicial district of the US
- (4) Results of Filing a Waiver - When a P files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver jurisdiction and venue not waived;
- (5) Serving an Individual w/in a judicial district of the US - An individual, other than a minor, an incompetent, or a person who's waiver has been filed may be served in a judicial district of the US by: following state law for serving summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or doing any of the following: delivering a copy of the summons and complaint to the individual personally; leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or delivering a copy of each to an agent authorized by law to receive service of process.
- (f) Serving an Individual in a Foreign Country - An individual, other than a minor, an incompetent, or a person who's waiver has been filed may be served at a place not within any judicial district of the US by: any internationally agreed means of service reasonably calculated to give notice; by a method reasonably calculated to give notice (a) as prescribed by foreign country's law; (b) as the foreign authority directs in response to a letter of request; (c) delivering copy of summons and complaint to D personally; (d) using any form of mail requiring signed receipts; (e) other menas not prohibited
- (6) Serving a minor or incompetent: must be served by following state law
- (7) Serving a corporation, partnership, or association: in the manner prescribed by Rule 4(e)(1) for serving an individual or; deliverying a copy of summons and complaint to an officer and/or by mailing a copy of each to the D
- (8) Serving the US and Its Agencies, Corps, Officers, or Employees: US - summons & complaint to the US atty for district where action is brought; send copy by registered or certified mail to the Atty Gen'l of US in DC; Agencies, Corp, Officer or EE sued in official capacity: must serve US with copies to agency, corp, officer or ee; Officer of EE sued Individually: must serve the US and the offer or ee; Extending Time: court must allow a party reasonable time to cure its failure.
- (9) Serving foreign, state or local gov't - (1) foreign state: must be served in accordance with 28 USC Sec. 1608