§ 3.01 Due Process

 

The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United States Constitution deny effect to adjudications unless the parties to be bound were given prior notice and an opportunity to participate.  Notice that satisfies due process may be found from proper service of process or other recognized alternatives. Process usually consists of a summons directing defendant to respond or appear in court on penalty of default.  Service is the formal means by which process is delivered to a defendant.

 

 

§ 3.02  Procedure for Service of Process

 

Rule 4 of the Federal Rules of Civil Procedure (FRCP 4) sets forth the methods for effectuating service in federal trials.  Specific procedures are outlined for various parties:  individuals, infants and incompetents, corporations and associations, foreign, federal, state and local governments, as well as individuals in foreign countries.

 

In federal actions, a plaintiff may serve process upon an individual, corporation or association by:

 

(1) delivering the summons and complaint to the individual personally;

 

(2) leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein;

 

(3) delivering the summons and complaint to an agent authorized by appointment or by law to receive service of process.

 

However, FRCP 4(d)(2) provides incentives for a defendant to agree to waive formal service and instead accept service by mail.  Upon notice of the commencement of the action and a request for waiver of service from the plaintiff, a defendant who so agrees is granted an extended time within which to answer – 60 days instead of the 20 days granted when process is formally served.  FRCP 4 imposes upon the defendant “a duty to avoid unnecessary costs of serving the summons,” and therefore, failure to accept process by mail subjects the defendant to liability for costs of service as well as attorney’s fees incurred in any motion to collect the costs of service.   

 

 

§ 3.03  Feasibility of Individual Notice

 

Alternative means of notice, such as newspaper publication, may satisfy due process where individual notice is impracticable and the party seeking to bypass individual notice can demonstrate that (1) the suit is in the interest of the absentees, (2) they will be adequately represented by one before the court, and (3) the value of their individual interests is not too great. Where the identities and parties can be reasonably ascertained, however, individual notice is required.  [Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)]