Civil Procedure
1st theme of class: balancing enforcement of a substantive rule of law against autonomy, against
efficiency – especially, when should a case be ended before discovery and/or trial?
Service of Process
3rd theme of class: statutory interpretation
Process: pieces of paper; Service of process: the way those papers get delivered.
Service (we are concerned only about service in U.S. and only on individuals and on
corporations or unincorporated associations – ignoring e.g. rules for service on gov’t officials, on
incompetents etc.)
• Gives notice to defendant that a lawsuit is pending
• Rule 55(a): Default – if the defendant doesn’t answer
o When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.
• Rule 60: Relief from a judgment or order (see slide for complete rule)
• What if service is improper? How are the service rules enforced?
o If you default:
Motion to set aside judgment by defendant under Rule 60 (under (b), if
service was improper, you can get rid of default judgment), or
Collateral attack – plaintiff can sue on default judgment in a place that has
jurisdiction over money that will allow for enforcement of judgment
(collect the debt) after defendant defaulted as a result of improper service;
new types of defense can be brought up (ex. bankruptcy); defendant
collaterally attacks the judgment on the basis of improper service (attack
in a different proceeding; defendant is saying plaintiff is trying to collect a
debt that doesn’t exist, and the debt does not exist because of issues in
earlier lawsuit); collateral attack concerning service only works if you
defaulted in other judgment
o If you find out about the suit despite the inadequate service:
Pre-answer motion to dismiss for insufficient service: FRCP 12(b)(5) –
grounds for dismissal under Federal Rules; sometimes courts allow case to
proceed even if service is improper because defendant did receive motion
(though doesn’t often happen in federal courts)
Defense of insufficient service in the answer
• Waiver of service of summons – Rule 4(d)
o Plaintiff sends various papers including waiver to defendant by mail
o If defendant submits waiver
o Defendant gets 60 days to answer instead of 20 (as an incentive)
o If defendant refuses, defendant must pay cost of service (unless D can show good
cause for refusing)
o Sometimes statute of limitations stops at service, not filing
Docsity.com
