Deck 5: Filing the Lawsuit, Service of Process, and Obtaining a Default Judgment

Question 1

What is the purpose of the waiver of service of summons? What documents are needed for it? What documents are needed for service of process in your state?

Answer 1

Rule 4(d) allows plaintiffs in actions filed in federal court to reduce the cost and time involved in serving the summons by placing a duty on the defendant to waive service of the summons. This process requires two documents to be provided and prepared by the plaintiff. The first is the Notice of Lawsuit and Request for Waiver of Service of Summons. It is addressed directly to the defendant, if an individual, or else to an officer or agent authorized to receive service.
It identifies the court in which the action has been filed and the docket number, informs the
defendant of the consequences of compliance and failure to comply with the request, sets forth the date the request is sent, and states that the defendant has thirty days (sixty if located in a foreign country) in which to return the waiver. The notice and request must be sent to each defendant.
The second document is the Waiver of Service of the Summons. It includes the case caption, docket number, court, and date the request was sent. The plaintiff sends to the defendant two copies of this waiver to be signed, along with means of return (self-addressed, stamped envelope). If the defendant returns the signed waiver, the period in which to answer the complaint is extended from the usual twenty days to sixty days (ninety, if out of the country).

Question 2

In your systems folder make a reference to the checklist for default judgment. Research the rules and forms applicable to obtaining a default judgment in your state courts, and draft a state checklist for default judgment. Add needed state forms to your systems folder.

Answer 2

You may choose to provide the state forms and draft a state checklist to use in evaluating student work. Confirm student understanding of Service Members Civil Relief Act regarding default.

Question 3

What is the practical goal of service of process? What are the federal and your state time limits for service?

Answer 3

Once the action is filed, it is essential to serve the summons and a copy of the complaint on the defendant in order for the court to gain personal jurisdiction over the defendant. In state court this is usually necessary to begin the action. The court's judgment is not binding against the defendant unless personal jurisdiction has been obtained by service of process. Consequently, it is an extremely important step. Under Rule 4(c) the plaintiff must serve the summons and a copy of the
complaint on each defendant within 120 days [Rule 4(m)] of filing the complaint. Failure to do so
shall result in dismissal of the action unless good cause for failure to comply can be shown to the court. In some states, the responsibility for service of the summons rests with the clerk of court. If service is the clerk's responsibility, it is best to provide information on the best place(s) and time to find the defendant.

Question 4

What classes of persons and businesses will the long-arm statute reach in your state?
What is (are) the method(s) of service required to comply with the long-arm statutes in your state?

Question 5

What event marks the commencement of a lawsuit in the federal court system? What usually commences the action in most state systems?

Question 6

What are the applicable rules and procedures for obtaining a default judgment? How and why may a default judgment be set aside?

Question 7

What is a default judgment? What is the benefit to the plaintiff of a default judgment?

Question 8

How does a paralegal keep good records of service?

Question 9

Obtain fee schedules for the federal, state, and local courts, including fees for service of process and the person to whom such service fees should be paid, as well as fees for the filing of subsequent pleadings and motions. If so directed by your instructor, contact the appropriate clerk of court for this information. Place the fee schedules in your systems folder with a reminder to update the information periodically.

Question 10

What are five techniques or sources for locating hard-to-find defendants?

Question 11

Define substituted and constructive service of process.

Question 12

Using an approach similar to the Reference Guide and Checklist for Methods of Service, draft a state service of process checklist for your systems folder. Look up any needed information in your state's rules of civil procedure or state statutes to complete your checklist.

Question 13

Define in rem and quasi in rem jurisdiction. Who is served process in an in rem action?

Question 14

After class discussion on locating difficult-to-find defendants, add additional techniques to the
Checklist for Locating Defendants. Place the checklist in your systems folder.

Question 15

The court cannot gain personal jurisdiction over the defendant until what happens?

Question 16

Draft a brief Checklist for Filing and Service of Documents Subsequent to the Complaint-Federal and a similar one for your state. Note the applicable rules for future reference, including any on e- filing and service. Place the checklists in your systems folder.

Question 17

How is service of process generally achieved in your state court system? What items are needed?

Question 18

What are the advantages of e-filing over traditional methods of filing?

Question 19

Define CM/ECF and PACER; describe the benefits and procedures for both the e-filing and e-access processes. What are the federal rules and restrictions on electronic services of process?

Question 20

What are long-arm statutes? What injustice do they attempt to remedy? What is meant by "minimum contacts" and constitutional "fair play"?

Question 21

What is the filing fee to file a civil action in federal court? In your state court?

Question 22

You want to serve Mercury Parcel Service, Inc. with a copy of the complaint in the Forrester matter.
Using your state statute, identify the procedures for serving a corporation. Prepare the documents for serving Mercury Parcel Service.

Question 23

Who should sign the Civil Cover Sheet?

Question 24

Assume that Richard Hart, one of the defendants in the Forrester case, was served but did not respond. Prepare the documents for obtaining a default judgment according to the rules in your jurisdiction.

Question 25

Why isn't the state's sovereign control over property enough to exercise either in rem and quasi in rem jurisdiction?

Question 26

Research Section 804 of the Federal Debt Collections Practices Act. Which of the following practices would be unlawful in trying to locate a defendant?
a. A paralegal contacts a neighbor of the defendant to locate the defendant.

Question 27

What is the clerk of federal court likely to ask the paralegal at the time of filing?

Question 28

What does it mean for the clerk of court to issue a summons?

Question 29

Do federal statutes permit nationwide service of process?

Question 30

Assume that you work for the firm that is representing Richard Hart and that for purposes of this problem, Mr. Hart is elderly and not well educated. He comes to your firm six months after a default judgment has been entered against him. Your attorney assigns you the task of determining if limited capacity brought on by an aging and lack of education is sufficient good cause to have a default judgement set aside. Research the issue and prepare a brief outline on what facts are sufficient good cause to set aside a default judgment.

Question 31

What forms are needed to secure service by the U.S. marshal or by a process server specially appointed by the court?

Question 32

Go to the Web site for your state courts and determine if any levels of your state courts permit e-filing. If there is an e-filing system, what is its name? If not, are there plans to implement an e-system? Is there a tutorial for its use? How does an attorney access and use the system?

Question 33

Although the complaint has been drafted, what should be checked on the complaint before filing?

Question 34

What is the best method of determining which documents and how many are needed to properly file a civil lawsuit?

Question 35

Who is immune from service of process and when?

Question 36

What are the required procedures to achieve service of process in each of the situations outlined in the Reference Guide and Checklist for Methods of Service?

Question 37

Prepare the necessary documents for filing Case II, the Ameche case, for both federal and your state courts. Use the sample forms provided in this chapter and the completed forms as a guide. Assume there is diversity jurisdiction. Check for accuracy.

Question 38

What is the practical goal of service of process? What are the federal and your state time limits for service?

Question 39

What purposes are achieved by filing th obtained, according toe action and service of process?

Question 40

Memo to: Terry Salyer, Paralegal
From:       Isadora Pearlman
Subject:     Research
Completion Date: Three days from today
Issue:       What are the necessary minimum contacts required by our            state statute to gain jurisdiction over a foreign corporation?          Over a nonresident tortfeasor? Over an Internet marketer?
Task:       Prepare a short memorandum on the state and constitutional          law on this subject.
Guidelines:    Check the annotated state statutes under “long-arm statutes,”          “foreign corporations,” and “non-resident tortfeasors” for             case law. Also try the state digest under similar key             phrases. Since the state’s long-arm statute affects both our            federal and state court, decisions in both jurisdictions are            helpful. See the section on researching and drafting a             memorandum of law in Chapter 6.

Question 41

Research your state statutes and pertinent cases to determine the most common factual situations that are sufficient to set aside a default judgment. According to the law, what should the court consider in determining whether a default judgment should be set aside?

Question 42

Consider grounds for setting aside a default judgment, then speculate on why an affidavit of nonmilitary service of defendant is required in most jurisdictions.

Question 43

The Freedom of Information Act may be helpful in finding the address of a defendant.

Question 44

Case deadlines in an action stem from the filing of the request for service of process.

Question 45

Place a copy of Exhibit 5.10, Checklist for E-Filings, in your systems folder.

Question 46

A benefit of court e-filing systems is accessibility from outside the law office.

Question 47

Documents to file a lawsuit must be delivered to the clerk of court in person.

Question 48

Go to the Web site for your state courts and determine if any levels of your state courts permit e-filing. If there is an e-filing system, what is its name? Is there a tutorial for its use? How does an attorney access and use the system? If not, are there plans to implement an e-system?

Question 49

Research your state counterpart to Rule 4(a) of the Federal Rules of Civil Procedure. Identify the number of the state rule and prepare a concise list of the content requirements for a valid summons in your state court. Place this in your systems folder.

Question 50

In serving an officer of the United States, service is complete simply by serving a copy of the summons and complaint on the U.S. Attorney General.

Question 51

A one-year statute of limitations and the need of an injured party to first file an administrative claim applies to the Federal Tort Claims Act.

Question 52

Assume for purposes of this assignment that Mr. Hart is an incompetent person; that he is the only defendant in the Ann Forrester case; that Mr. Hart's guardian has been served with a summons and complaint; and that the guardian did not respond within the required 20 days. Draft the necessary state documents to obtain a default judgment in the case. Use your checklist.

Question 53

Default judgments may award amounts greater than those requested in the complaint.

Question 54

Assume you have hit a dead end trying to locate the defendant in your client's lawsuit. Your client is willing to pay only a small amount to continue the search. Go to the people locator sites listed in Google, Bing or other search engine and compare fees. What will the companies charge if the search is not successful?

Question 55

Outline the process of filing the lawsuit.

Question 56

Outline the procedure for service of summons in your state. Are there special forms for request of service?

Question 57

Who is usually immune from service of process? Speculate on why this is so.

Question 58

Following traditional service of the summons and obtaining proper consent, subsequent documents may be filed electronically.

Question 59

Go to on Electronic Access to Courts, click on Case Management/ Electronic Case Files Project, click on Court Links, then click on the links to your federal district court. Explore the site for free tutorials and materials on the CM/ECF system. Work through the online tutorial. If your court does not have a tutorial, link to one that does.

Question 60

Constructive service is most often used in in rem actions.

Question 61

What is the difference between the entry of default and the entry of default judgment?

Question 62

A Notice of Lawsuit and Request for Waiver of Service of Summons

A) is designed to save time but not cost.
B) also requires a Waiver of Service of Summons.
C) also requires a copy of the original summons.
D) shortens the time to answer the complaint.

Question 63

What cautions should be observed in locating defendants?

Question 64

Compare in rem and quasi in rem actions.

Question 65

Public access to federal court documents in specific cases is available through

A) CM/ECF.
B) NEF.
C) PACER.
D) us.gov.

Question 66

How is federal service of an in-state corporation accomplished?

Question 67

To whom is the request for entry of default judgment submitted?

Question 68

The best source for finding out for the first time what documents are needed in a state court is

A) your systems folder checklist.
B) the clerk of court.
C) another paralegal.
D) a reference book of forms.

Question 69

The Process Receipt and Return form must be filed when service of process is by

A) U.S. marshal.
B) county sheriff.
C) secretary of state.
D) local constable.

Question 70

What does the clerk of court do in filing a case?

Question 71

What cautions apply when seeking default judgments against multiple defendants?

Question 72

Generally, when does an action officially begin in state court and in federal court?

Question 73

Good cause to set aside a default judgment includes all of the following except

A) illness of defendant's attorney.
B) the judgment has been satisfied.
C) the amount of damages requested is unfair.
D) misconduct of adverse party.

Question 74

Service of process

A) is necessary before a default judgment can be entered.
B) establishes personal jurisdiction.
C) officially notifies the defendant of the lawsuit.
D) all of the above.

Question 75

Why is it important to confirm the method of service of process with the attorney before filing?

Question 76

A nongovernmental corporation must disclose any parent corporation

A) on its first appearance in the case.
B) as soon as discovery is complete.
C) as a response to a motion by the opposing party.
D) at any time before trial.

Question 77

A hearing on an application for default judgment requires

A) no special preparation.
B) evidence to prove amount of damages.
C) 20 days' notice.
D) defendant's testimony.

Question 78

Identify and give the significance of NEF.

Question 79

Long-arm statutes allow service of process on out-of-state defendants as long as

A) the defendant is a corporation.
B) service is by a U.S. marshal.
C) the defendant has had sufficient contacts with the state.
D) the plaintiff is also out of state.

Question 80

All of the following may be immune from service of process except

A) witnesses attending trial.
B) agents of the United States.
C) defendants brought into a state by force.
D) defendants traveling to a trial.