February 17, 2012
PL 100-- Introduction to Paralegal Studies
PL 100 Week #6
This week’s communication note: I have sending out confirmation emails when I receive your assignments. If you send in an assignment, but don’t get a response from me, something has gone wrong, so send me a follow-up email.
This week the textbook reading is Chapter 10, Civil Litigation: Before the Trial.
One of the subjects discussed is the Service of the Summons and Complaint (pp. 316-317). As the textbook notes, different states have different rules regarding the manner in which these important papers get delivered to the Defendant.
Read the Maine Rules of Civil Procedure (MRCivP) regarding service of the Summons and Complaint (called “Process”). I have pasted the ones I want you to look at to the end of this assignment.
There are different methods for serving process on the Defendant: one way is by mailing the papers to the Defendant (if the Defendant is willing to cooperate). See MRCivP 4(c)(1). If that doesn’t work, though, the stand-by is to have the Sheriff’s department deliver the papers to the Defendant personally or leaving them at the Defendant’s home with a suitable person. See MRCivP 4(d)(1).
This week’s written assignment concerns the question of what to do if your law office is faced with a defendant who does not want to cooperate in being served. As the paralegal in the office, you’ve been assigned the task of making sure that the Defendant is properly served.
Your first attempt was by mailing the papers to the Defendant, doing everything that is required under MRCivP 4 (c)(1). You called him after you mailed the papers (something that you can only do if he is not represented by an attorney) and he admitted that he had gotten the papers, but he said that he wasn’t planning on making anything easy for you, so he wouldn’t be sending anything back.
You then sent the papers to the Sheriff for service under MRCivP 4(d)(1), but the Sheriff reported that although he could see the Defendant through the window of the Defendant’s house, the Defendant apparently saw the Sheriff as well, and refused to answer the door when the Sheriff knocked on it. The Sheriff also tried calling the Defendant while the Sheriff was standing outside, but noone answered the phone. So the Sheriff loudly announced that he was sliding the papers through the mail slot in the door, and did that, and left. The Sheriff filled out an affidavit going over what had happened. You also tried calling the Defendant yourself, but he apparently won’t take your calls anymore, and so noone returned your call when you left a message.
Your attorney is worried about whether service was properly effected with either the mailing or the Sheriff’s delivery. She has asked you to do some research and write her a memo regarding both the mailing and the Sheriff’s delivery.
After some research, you find two cases that seem to be on point. One is Brown v. Thaler, 2005 ME 75, and the other is TD Banknorth v. Hawkins, 2010 ME 104.
Both cases can be found at the Maine Judicial Branch website, Go to
http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml
Then choose the year, and scroll down to the Opinion. Remember that all you are interested in is the question of service of process, not any other issues that the Court might deal with in those cases.
After reading both decisions, write the memo to your boss about whether service was effective under the law. Write simply and clearly. Get right to the point, without a lot of introduction—the boss just wants to know the law. But don’t just give your opinion: explain what the cases say about the effectiveness of service in both cases (mail and Sheriff). You don’t need to use any particular format in the memo.
Send your assignment to me by e-mail. (Please remember to use your Husson FirstClass account.) There is no particular length that I’m looking for, but just get to the point in the memo.
Your letter will be due by noon on Saturday, February 25th. This response will be worth 5% of your final grade (5 points).
If you have any questions, please feel free to e-mail me with them.
MAINE RULES OF CIVIL PROCEDURE
RULE 3. COMMENCEMENT OF ACTION
Except as otherwise provided in these rules, a civil action is commenced (1) by the service of a summons and complaint, or (2) by filing a complaint with the court. When method (1) is used, the complaint must be filed with the court within 20 days after completion of service. When method (2) is used, the return of service shall be filed with the court within 90 days after the filing of the complaint. If the complaint or the return of service is not timely filed, the action may be dismissed on motion and notice, and in such case the court may, in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney fee as costs in favor of the defendant, to be recovered of the plaintiff or the plaintiff’s attorney.
RULE 4. PROCESS
(a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.
(b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make return of service and a copy of the summons and of the complaint for service upon the defendant.
(c) Service. Service of the summons and complaint may be made as follows:
(1) By mailing a copy of the summons and of the complaint (by first- class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment form and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this paragraph is received by the sender within 20 days after the date of mailing, service of the summons and complaint shall be made under paragraph (2) or (3) of this subdivision.
(2) By a sheriff or a deputy within the sheriff’s county, or other person authorized by law, or by some person specially appointed by the court for that purpose. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
(3) By any other method permitted or required by this rule or by statute.
(d) Summons: Personal Service. The summons and complaint shall be served together. Personal service within the state shall be made as follows:
(1) Upon an individual other than a minor or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made pursuant to subdivision (g) of this rule.
(2) …
PL 100 Week #6
This week’s communication note: I have sending out confirmation emails when I receive your assignments. If you send in an assignment, but don’t get a response from me, something has gone wrong, so send me a follow-up email.
This week the textbook reading is Chapter 10, Civil Litigation: Before the Trial.
One of the subjects discussed is the Service of the Summons and Complaint (pp. 316-317). As the textbook notes, different states have different rules regarding the manner in which these important papers get delivered to the Defendant.
Read the Maine Rules of Civil Procedure (MRCivP) regarding service of the Summons and Complaint (called “Process”). I have pasted the ones I want you to look at to the end of this assignment.
There are different methods for serving process on the Defendant: one way is by mailing the papers to the Defendant (if the Defendant is willing to cooperate). See MRCivP 4(c)(1). If that doesn’t work, though, the stand-by is to have the Sheriff’s department deliver the papers to the Defendant personally or leaving them at the Defendant’s home with a suitable person. See MRCivP 4(d)(1).
This week’s written assignment concerns the question of what to do if your law office is faced with a defendant who does not want to cooperate in being served. As the paralegal in the office, you’ve been assigned the task of making sure that the Defendant is properly served.
Your first attempt was by mailing the papers to the Defendant, doing everything that is required under MRCivP 4 (c)(1). You called him after you mailed the papers (something that you can only do if he is not represented by an attorney) and he admitted that he had gotten the papers, but he said that he wasn’t planning on making anything easy for you, so he wouldn’t be sending anything back.
You then sent the papers to the Sheriff for service under MRCivP 4(d)(1), but the Sheriff reported that although he could see the Defendant through the window of the Defendant’s house, the Defendant apparently saw the Sheriff as well, and refused to answer the door when the Sheriff knocked on it. The Sheriff also tried calling the Defendant while the Sheriff was standing outside, but noone answered the phone. So the Sheriff loudly announced that he was sliding the papers through the mail slot in the door, and did that, and left. The Sheriff filled out an affidavit going over what had happened. You also tried calling the Defendant yourself, but he apparently won’t take your calls anymore, and so noone returned your call when you left a message.
Your attorney is worried about whether service was properly effected with either the mailing or the Sheriff’s delivery. She has asked you to do some research and write her a memo regarding both the mailing and the Sheriff’s delivery.
After some research, you find two cases that seem to be on point. One is Brown v. Thaler, 2005 ME 75, and the other is TD Banknorth v. Hawkins, 2010 ME 104.
Both cases can be found at the Maine Judicial Branch website, Go to
http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml
Then choose the year, and scroll down to the Opinion. Remember that all you are interested in is the question of service of process, not any other issues that the Court might deal with in those cases.
After reading both decisions, write the memo to your boss about whether service was effective under the law. Write simply and clearly. Get right to the point, without a lot of introduction—the boss just wants to know the law. But don’t just give your opinion: explain what the cases say about the effectiveness of service in both cases (mail and Sheriff). You don’t need to use any particular format in the memo.
Send your assignment to me by e-mail. (Please remember to use your Husson FirstClass account.) There is no particular length that I’m looking for, but just get to the point in the memo.
Your letter will be due by noon on Saturday, February 25th. This response will be worth 5% of your final grade (5 points).
If you have any questions, please feel free to e-mail me with them.
MAINE RULES OF CIVIL PROCEDURE
RULE 3. COMMENCEMENT OF ACTION
Except as otherwise provided in these rules, a civil action is commenced (1) by the service of a summons and complaint, or (2) by filing a complaint with the court. When method (1) is used, the complaint must be filed with the court within 20 days after completion of service. When method (2) is used, the return of service shall be filed with the court within 90 days after the filing of the complaint. If the complaint or the return of service is not timely filed, the action may be dismissed on motion and notice, and in such case the court may, in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney fee as costs in favor of the defendant, to be recovered of the plaintiff or the plaintiff’s attorney.
RULE 4. PROCESS
(a) Summons: Form. The summons shall bear the signature or facsimile signature of the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.
(b) Same: Issuance. The summons may be procured in blank from the clerk and shall be filled out by the plaintiff’s attorney as provided in subdivision (a) of this rule. The plaintiff’s attorney shall deliver to the person who is to make service the original summons upon which to make return of service and a copy of the summons and of the complaint for service upon the defendant.
(c) Service. Service of the summons and complaint may be made as follows:
(1) By mailing a copy of the summons and of the complaint (by first- class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment form and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this paragraph is received by the sender within 20 days after the date of mailing, service of the summons and complaint shall be made under paragraph (2) or (3) of this subdivision.
(2) By a sheriff or a deputy within the sheriff’s county, or other person authorized by law, or by some person specially appointed by the court for that purpose. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.
(3) By any other method permitted or required by this rule or by statute.
(d) Summons: Personal Service. The summons and complaint shall be served together. Personal service within the state shall be made as follows:
(1) Upon an individual other than a minor or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. The court, on motion, upon a showing that service as prescribed above cannot be made with due diligence, may order service to be made pursuant to subdivision (g) of this rule.
(2) …
posted by sol goldman | 7:52 PM
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