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The Bearer of Bad Tidings


The Bearer of Bad Tidings

Service of Process in the Federal Courts


Some of the most profound protections of our constitutional system are astoundingly simple. “Due process of law” under the Fourteenth Amendment, for example, guarantees parties the basic right to notice of a court’s intention to adjudicate their rights and an opportunity for those parties to be heard before the court proceeds to do so. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank, 339 U.S. 306, 311 (1950). In civil suits, this requirement is fulfilled through service of process.

The term service of process is often used to refer to the delivery to a party or witness of various court orders required by the relevant rules of law to be served upon him, including subpoenas, writs, and other orders that are entered in the course of litigation. However, in a stricter sense the term is used—as we will use it here—to refer to service of the initial notice to the defendant of the filing of a lawsuit against him. Service of this initial summons both notifies the defendant that he has been sued and informs him that the court intends to proceed to adjudicate his rights. The summons in the Schulansky case, for example (infra, p. 638), specifically warns the defendants that they must respond to the plaintiff’s complaint, or judgment by default will be entered against them.

All courts, state and federal, have elaborate provisions governing service of this initial notice to defendants. State service provisions may be found in statutes (see, e.g., N.Y. Civ. Prac. Law §§305-318) or in court rules (see, e.g., Mass. R. Civ. P. 4, set forth on pp. 354-355 for use in this chapter). This chapter explores the intricacies of Rule 4 of the Federal Rules of Civil Procedure, which governs service of process in the federal courts, as an example of service provisions.

Rule 4 specifies in detail what documents must be served on the defendant (Rule 4(c)(1)), the contents of the summons (Rule 4(a)), how the papers must be served (Rules 4(e)-(j)), when they must be served (Rule 4(m)), who must serve them (Rule 4(c)(2)), and how the requirement of service may be waived (Rule 4(d)). For example, if you look at Form 3 of the Federal Rules Forms, which follows the Federal Rules of Civil Procedure, you will see that the summons there complies with each of the requirements in Rule 4(a) as to the contents of the summons. It provides for the signature of the clerk and the seal of the court, identifies the court and the parties, provides the name of the plaintiff’s attorney, states the time within which the defendant must respond, and that default judgment will enter against him if he fails to do so. Compare the summons in the Schulansky case (infra, p. 638), drawn to comply with similar provisions as to form in Mass. R. Civ. P. 4(b).

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