Civil Procedure Help Regarding Service of Process

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Cavalier-336

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Civil Procedure Help Regarding Service of Process

Postby Cavalier-336 » Sat Feb 04, 2017 11:19 pm

First, thank you for taking the time to help with this for those that are in a position to help. It means a lot.

Second, I will state a couple of rules that I believe I understand. My question should be a simple FRCP question, and then, based on that, I will ask how it relates to a specific FRCP issue that I am having, which appears to mirror a FRCP as well.

So there will be two questions that I would appreciate so much to have answered. 8)

Here we go.

FIRST ISSUE THAT I HAVE

I believe I understand the FRCP to allow a Defendant ("D) 21 days after receiving the complaint and summons in his hands to serve an answer on the plaintiff's ("P") complaint.

Further, I believe D, in serving his answer on the P, is judged by a different rule. According to FRCP 5(a)(1)(B), "a pleading filed after the original complaint" must be served on every party. And according to FRCP 5(b)(2)(C), a paper is deemed served under Rule 5 through a litany of ways, one of which is..."mailing it to the person's last known address—in which event service is complete upon mailing;"

Therefore, D will be deemed to have served P after D simply mails it out, regardless of the date P actually receives it. In other words, if D mailed it out on the 21st day (the day the answer is due to be served), then D is fine. Even if P received the answer on the 25th day.

So that is the first issue I want to confirm that I have correct.

SECOND ISSUE THAT I HAVE

FRCP 6(d) provides in pertinent part, "When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk) . . . 3 days are added after the period would otherwise expire under Rule 6(a).

I am having trouble understanding the logic of that rule. That rule suggests that if D was served by a federal marshal, then D will not have 3 additional days. However, if D was served by mail, then D receives 3 additional days. Why would D be given MORE TIME when D's time to answer is ONLY TRIGGERED AFTER being served.

musashino

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Re: Civil Procedure Help Regarding Service of Process

Postby musashino » Sun Feb 05, 2017 3:51 am

How are you studying?

Not necessarily saying most of what you're asking for is obscure, but are you studying straight from the FRCP? I kinda feel like you're going down the rabbit hole. It's a good idea to understand the rationale behind rules at times, as that helps with memorization when it makes sense anyway, but I think you might be taking it a bit far.

To respond (and take everything with a grain of salt as these are just my thoughts):

"I believe I understand the FRCP to allow a Defendant ("D) 21 days after receiving the complaint and summons in his hands to serve an answer on the plaintiff's ("P") complaint."

Some caveats as to this point.

First, yes, an answer must be filed within 21 days of being served process, UNLESS D decided to respond first with a Rule 12(b) motion, at which point, D has 14 days after the RULING was made on the Rule 12 motion. It's very testable in that of the 7 Rule 12(b)'s, 2-5 are waivable unless they're included in D's first Rule 12 Response. The Rule 12 Response being either: 1) An Answer, or 2) Rule 12(b) Response. Remember that an Answer is also a creature of Rule 12.

Second, I'm just mentioning this because you specified "receiving the complaint and summons in his hands," but service of process can be achieved via a multitude of ways with "personal service" (i.e. "handing the Process" over to his hands) being only one of 4+ ways. Substitute or Agency Service is just as good.

"Therefore, D will be deemed to have served P after D simply mails it out, regardless of the date P actually receives it. In other words, if D mailed it out on the 21st day (the day the answer is due to be served), then D is fine. Even if P received the answer on the 25th day."

Yes, I believe this to be the case. This rule is perfectly reasonable given that P should be anticipating an answer anyway, and in the real world, it's not really P who will be receiving D's First Response anyway. It'll go to P's attorney's office whose job description is to check their mail for this shit.

FRCP 6(d) provides in pertinent part, "When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk) . . . 3 days are added after the period would otherwise expire under Rule 6(a).

I can't speak to exactly what FRCP 6(d) is saying as I'm not basing my studies around actually reading the FRCP, just using commercial guides/outlines, but this section should probably have nothing to do with the service of PROCESS. It has to do with OTHER SUBSEQUENT NON-PROCESS DOCS such as interrogatories, answers, motions, discovery, etc...).

Take interrogatories for example. Via FRCP 33(b)(2), you have 30 days after being served. If service is achieved by being mailed to you, then you get 3 extra days to respond to the interrogatories, hence you would have 33 days to respond.

"I am having trouble understanding the logic of that rule. That rule suggests that if D was served by a federal marshal, then D will not have 3 additional days. However, if D was served by mail, then D receives 3 additional days. Why would D be given MORE TIME when D's time to answer is ONLY TRIGGERED AFTER being served."

Honestly, I think a lot of your questions have to do with a misunderstanding of what "being served" actually means.

Service of Process may require traditional "service" in the form of: personal service, agency service, substituted service, or if the state allows via statute, even "mailed service" governed by whatever rules the statute has. But Process is just a term denoting the SUMMONS & COPY OF THE COMPLAINT. The burden for initially notifying the Defendant that he's even being sued is obviously very high to satisfy Due Process.

Service of anything OTHER THAN PROCESS is completely different and can be satisfied simply by mailing shit out. After Service of Process, it's a given that both parties now know they're involved in a lawsuit for each other and are eagerly anticipating docs. There's no real danger that Due Process is being violated, since it's not as if a D could back out saying, "I didn't get the interrogatories until 2 months later," when, if he was served with Process, he should've been more vigilant.

And can you imagine how impossibly burdensome pre-litigation would be if every single doc had to be "served' like when "serving process?"


Just as a word of advice, and I don't know what position you're in right now, but honestly, Service isn't the most tested area period. I don't think it's efficient to be studying via FRCP directly...

I mean.. nearly 90% of what you're asking isn't even remotely touched on in Barbri Handouts for example.

run26.2

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Re: Civil Procedure Help Regarding Service of Process

Postby run26.2 » Sun Feb 05, 2017 8:45 am

You have the first part right.

On the second part, AFAIK, you can't serve a complaint on a party (other than the US) via mail (though you used to be able to); you normally use a process server. But, you can send the complaint and a waiver of service by mail and give the defendant a reasonable period of time not less than 30 days to respond. Rule 6(d) applies when items other than the complaint are served.

Cavalier-336

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Re: Civil Procedure Help Regarding Service of Process

Postby Cavalier-336 » Sun Feb 05, 2017 12:08 pm

Musashino, I thank you so much for your extremely helpful remarks.

I do study with Barbri.

Haven't you had those moments where a rule's meaning makes no sense? I saw the Rule 6(d) thing in Barbri. I had never heard of it before. I went to straight to the FRCP.

I read Rule 6(d), and it certainly makes sense that this rule would only apply to things like later motions, and not Defendant's answer. However, the Rule itself, on its face to ALSO include D's answer as receiving the additional time.

In the quote below, I have bolded parenthethicals that show me applying my scenario. The scenario is D being served with process (summons and complaint).

"When a party (DEFENDANT) may or must act within a specified time after being served (DEFENDANT MAY OR MUST ACT WITHIN 21 DAYS SAYS THE SUMMONS, SO THIS LANGUAGE INCLUDES THIS) and service is made under Rule 5(b)(2)(C) (mail)(DEFENDANT WAS SERVED BY MAIL) . . . 3 days are added after the period would otherwise expire under Rule 6(a).


There is nothing in Rule 6(d) that says Rule 6(d) is not applicable to D's answer.

Cavalier-336

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Re: Civil Procedure Help Regarding Service of Process

Postby Cavalier-336 » Sun Feb 05, 2017 12:14 pm

run26.2 wrote:You have the first part right.

On the second part, AFAIK, you can't serve a complaint on a party (other than the US) via mail (though you used to be able to); you normally use a process server. But, you can send the complaint and a waiver of service by mail and give the defendant a reasonable period of time not less than 30 days to respond. Rule 6(d) applies when items other than the complaint are served.


The FRCP allows P to use the service of process rules of the state where the federal court sits AND the service of process rules of the state where D resides. And many states, of course, allow service of process by certified mail (generally return receipt).

I find where your last statement in the quote striking. How do you know that? The Rule does not say that. Hell, Rule 6(a) is used to COMPUTE the time that D has. 6(a) tells D that the day of service doesnt count towards the clock. It also says that if the clock should have ran out on a Saturday, the clock actually continues until the next weekday that is not a holiday.

So how can it be that Rule 6(a) is used here but not Rule 6(d)?

musashino

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Re: Civil Procedure Help Regarding Service of Process

Postby musashino » Sun Feb 05, 2017 1:34 pm

Cavalier-336 wrote:Musashino, I thank you so much for your extremely helpful remarks.

I do study with Barbri.

Haven't you had those moments where a rule's meaning makes no sense? I saw the Rule 6(d) thing in Barbri. I had never heard of it before. I went to straight to the FRCP.

I read Rule 6(d), and it certainly makes sense that this rule would only apply to things like later motions, and not Defendant's answer. However, the Rule itself, on its face to ALSO include D's answer as receiving the additional time.

In the quote below, I have bolded parenthethicals that show me applying my scenario. The scenario is D being served with process (summons and complaint).

"When a party (DEFENDANT) may or must act within a specified time after being served (DEFENDANT MAY OR MUST ACT WITHIN 21 DAYS SAYS THE SUMMONS, SO THIS LANGUAGE INCLUDES THIS) and service is made under Rule 5(b)(2)(C) (mail)(DEFENDANT WAS SERVED BY MAIL) . . . 3 days are added after the period would otherwise expire under Rule 6(a).


There is nothing in Rule 6(d) that says Rule 6(d) is not applicable to D's answer.



A TON of rules make very little sense. You'll legit have to study legislative history to know why the rules/laws are the way they currently are. Most of the time you find out it's cause legislatures are slow, or some douche-snozzle in England a few centuries ago decided to do things a certain way.

The reason I even gave you my opinion on the matter is because you remind me of me lolol. I get caught up basically doing "research" on some rule that makes very little sense to me for a few hours at times despite the fact that I know the chances of it coming out as a question are next to nil.

With just 16 days left or so, I was just hoping you AND I can just push that aside, and pass this test of MINIMUM competence.

Perfectionists will get the short end of the stick as to results for sure.

I mean.. it's almost a fruitless endeavor to go over minutiae as you've just displayed on your last post with Cavalier re: Service of Process rules pertaining to Complaint.

When we talk about generally accepted rules, FRCP, State's rules, Common law, etc... there are so many possibilities and interpretations, it just becomes an epic swamp.

Trust me, I only responded as much as I did because I empathize with you so much. Hell, you're talking to a guy who's 90% done with his MBE "FLASHCARD" series, I'm 50% done on my last MBE subject, Civ Pro, "PERFECT FLASHCARD" series - it's like a hybrid of an uber detailed outline and flashcards - and I just spent the last 90 minutes stuck on freak'n Expert Witnesses, trying to figure out this absolute meaningless minutiae that i'm 99.99% sure won't be tested on the exam. FML and FM brain.

Cavalier-336

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Re: Civil Procedure Help Regarding Service of Process

Postby Cavalier-336 » Sun Feb 05, 2017 3:13 pm

I am taking it in July, so I have more than 16 days.

Good luck to you.



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