civpro

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Author:
eryanphr
ID:
39167
Filename:
civpro
Updated:
2010-10-03 12:20:00
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civpro rule summons
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Description:
civpro, rule 4, summons
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  1. 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
  2. What is Rule 4(a)-2?
    Amendments - court may permit a summons to be amended
  3. 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)
  4. 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.
  5. 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

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