service
service - FRCP 4(c)
1. the summons must be served with a copy of the complaint. p is responsible for having the summons and complaint served within the time allowed by rule 4(m) and must furnish the necessary copies to the person who makes service
2. any person who is at least 18 years old and not a party may serve the summons and complaint
waiver of service (timing) - FRCP 4(d)(3)
a d who, before being served with process timely returns the waiver, need not serve an answer to the compalint until 60 days after the request was sent or until 90 days after it was sent to d outside any judicial district of the US
procedures for challenging improper venue in federal court
1. in a motion to dismiss, filed at the beginning of a lawsuit
2. as an affirmative defense, included in an answer to p's complaint (only if you did not file a MTD)
3. on appeal, but only if you properly preserved your objection by raising it either in a MTD or in your answer
4. via a motion to transfer venue, often filed together withh a MTD based on improper venue, or field after answering the complaint (assuming you preserved your objection to venue via an affirmative defense)
list of factors regarding doctrine of forum non conveniens
- private
1. ease of access to proof - where is the evidence
- is compulsory process available
- cost of obtaining willing witnesses
- view of the premises
2. buden on d
3. p's chose of forum
4. enforceability
5. any other private considerations
- public
1. forum state courts burdened with complex litigation unrelated to the forum
2. jury duty imposed upon people who have no connection with the litigation
3. application of foreign law required
personal service - FRCP 4(e)(2)
unless federal law provides otherwise, an individual other than a minor, incompetent person, or a person whose waiver has been filed, may be served in a judicial district of the US by doing any of the following:
1. delivering a copy of the complaint and the summons to the individual personally
2. 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
3. delivering a copy of each to an agent authorized by appointment or by law to receive service of process
procedure of waiver of service in federal court - rule 4(d)
1. p mails a copy of complaint, 2 copies of service of waiver form, and a SASE to d; d signs the service of waiver form and mails it back to p within 30 days
2. if d refuses to waive service and doesn't have good casue for doing so, d may be required to pay costs of service and costs of bringing a motion to collect those costs
3. if d refuses to waive service, d has not been served (even if d had no good cause to refuse)
mandatory transfer of venue §1406
- requirements: proper venue and pj
- law that applies: transferee forum law
limitations
1. case will not be dismissed unless another more convenient forum exists
2. if p is a us resident, balance of factors must be overwhelmingly in favor of dismissal
3. many state courts do not recognize FNC
service upon corporations and associations - FRCP 4(h)
unless federal law provides otherwise, or the defendant's waiver has been filed, a domestic for foreign corporation or a partnership or other incorporated associated must be served:
- by delivering a copy of the summons and complaint to an officer or managing agent or any other agent authorized by appointment or by law to receive service of process and if the agent is one authorized by statute - and statute so required - by also mailing a copy of each to the d
venue generally §1391(b)
1. district where any d resides if all ds are residents of state in which district is located
2. district where substantial part of events giving rise to the claim occurred
3. if there is no district in which the action may be brought, any judicial district where d is subject to pj with respect to such action
discretionary transfer of venue §1404(a)
- requirements: proper venue, pj, more convenient/better venue
- law that applies: transferor forum law
rules decision act
laws of the several states
state methods and service of process - FRCP 4(e)(1)
unless federal law provides otherwise, an individual other than a minor, incompetent person, or a person whose waiver has been filed, may be served in a judicial district of the US by:
- following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or service is made
venue residency §1391(c)
1. a natural person or alien (who is a permanent resident) shall be deemed to reside in the district where they are domiciled
2. an entity, whether or not a corporation, shall be deemed to reside, if a d, in any judicial distruct subjected to pj with respect to civil action in question, and if a p, only in the judicial district in which it maintains its ppb
3. a d, not resident in the US (alien), may be sued in any judicial district
steps for requesting a discretionary transfer venue - §1404(a)
party requesting a transfer must show that:
1. the p could have filed the case in the transferee forum, or all parties consent to the transferee forum
2. the transferee forum is a more convenient forum than the judicial district in which the case is filed or the party requesting transfer would suffer prejudice if the case is not transferred
wiaver of service (timing) - FRCP 4(d)(1)
the p may notify such a d that action has been commended and request that the d waive service of a summons. the notice and requests must:
- give the d a reasonable time of at least 30 days after the request was sent or at least 60 days if sent to the d outside any judicial district of the US to return the waiver
venue residency for corporations §1391(d)
residency of corporations in states with multiple judicial districts
- corporation shall be deemed to reside in any district at that state in which its contacts would be sufficient to subject it to pj. if that were a separate state and no such district, the corporation shall be deemed to reside in a dsitrict in which it has the most signifcant contacts
list of factors regarding convenience/justice for discretionary transfer of venue
- private
1. ease of access to proof - where is the evidence: is compulsory process available; location of physical evidence
2. p's choice of forum/p's convenience
3. d's choice of forum/d's convenience
4. where the claim arose/connection between the FS and the action
- public
1. will a transferee be required to apply the law of another state/country
2. which court (transferee/transferor) has a more crowded dockett
3. which court has a closer connection to the controversy/which forum has a greater interest in the controversy