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22 Cards in this Set

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Rule 4—Summons Subsection 4(a) — What is the purpose of the summons?
To notify the defendant of the civil action.
Rule 4—Summons Subsection 4(a)
—What action should be taken by the plaintiff if the summons and the complaint contain erroneous information?
1. Rule 4—Summons Subsection 4(a)
—The plaintiff should amend pursuant to rule 4(a). If you are amending the complaint or any other pleading use rule 15 in order to amend. A summons is not a pleading.
i. Rule 4—Summons Subsection 4(b)—issuance—
the court shall issue a summons submitted in proper form by affixing a signature, date and seal and making copies for all defendants to the civil action.
Rule 4—Summons What does issuance of the summons mean?
Issuance means to put it in the proper form and give it to the plaintiff. Serving is the way of deliverance to the defendant.
Rule 4—Summons What action should a defending party take if the summons is not properly issued?
12(b)(4) motion to dismiss –
3. Describe Rule 4—Summons subsection 4(c)
—summons and complaint must be served on the defendant by how
(1) certified mail with return receipt (effective when delivered—delivered means the date on the receipt of when the defendant signs the complaint
3. Describe Rule 4—Summons subsection 4(c)—summons and complaint must be served on the defendant by how
(1) certified mail with return receipt (effective when delivered—delivered means the date on the receipt of when the defendant signs the complaint
this is different from 1st class mail) (2) US Marshall or deputy Marshall (may use this means if you think the defendant will react violently) (3) process server which can be any person over the age of 18 and is not a party to the civil action.
3. Describe Rule 4—Summons subsection 4(c)—summons and complaint must be served on the defendant by how
(1) certified mail with return receipt (effective when delivered ) delivered means the date on the receipt of when the defendant signs the complaint
this is different from 1st class mail) (2) US Marshall or deputy Marshall (may use this means if you think the defendant will react violently) (3) process server which can be any person over the age of 18 and is not a party to the civil action.
3. Describe Rule 4—Summons subsection 4(c)—summons and complaint must be served on the defendant by how
(1) certified mail with return receipt (effective when delivered ) delivered means the date on the receipt of when the defendant signs the complaint this is different from 1st class mail) (2) US Marshall or deputy Marshall (may use this means if you think the defendant will react violently) (3) process server which can be any person over the age of 18 and is not a party to the civil action.
Mail box with cowboy hat with birthday cake ablaze with candles.
4. Rule 4—Summons subsection 4(c)—After the commencement of a civil action, what papers should be served together on the defendant?
Summons and the complaint. If proper, also a notice of order of injunction.
Within what time period must service of process be made on the defending parties?
120 days after filing the complaint.
Within what time period must service of process be made on the defending parties?
NC Law—30 days for service and 5 working days for issuance.
Forma pauperis means what?
—the plaintiff is deemed to be poor by the court so the fee to pay someone to serve will be waived and the filing fee will be waived.
Forma pauperis means what?
—the plaintiff is deemed to be poor by the court so the fee to pay someone to serve will be waived and the filing fee will be waived.
i. Discuss Subsection 4(d)
—the defendant has a duty to avoid costs and waive service if the plaintiff requests waiver. A defendant who waives is given 30 days to return waiver to plaintiff and 60 days to answer the complaint (90 days if outside the US).
By waiving service of process, what has a defendant waived?
What has he not waived?
a. What happens when A defendant who waives service has also waived 12(b)(4) and 12(b)(5), but not any other 12(b) motions
It is a fee shifting service in that if the defendant denies or does not respond to the waiver the plaintiff may request an order from the court to order the defendant to pay the service fee.
b. Discuss Process 4(d)
—the plaintiff sends a request for waiver and notice to the defendant (it must be an original and a copy). Then the defendant gets it and has 30 days from the postmark date to return it. If the defendant doesn’t answer in 30 days, then the plaintiff has to make proper service on the defendant using certified mail or one of the other methods. Then the plaintiff will request a process of cost order from the court making the defendant reimburse for proper service (this is an incentive for the defendant to waive). Then the defendant must answer in 20 days instead of 60 days. So even if the defendant does not respond to the waiver in 30, the plaintiff has to make sure that the summons and complaint is served in 120 days unless the plaintiff can show cause for an extension. Thus, in actuality, the plaintiff who sends a waiver has 90 days after the 30 day response time has collapsed to serve.
The 3 day rule pursuant to rule 6(e)?
doesn’t apply to waiver of service.
What is the meaning of “waiver of service?”?
A waiver of service is a means for the plaintiff to avoid the service fee when serving the defendant.
Waiver in NC
a. There is no waiver of service in NC.