Notice of lawsuit and request for waiver of service of a summons

A notice of lawsuit and request for waiver of service of a summons under Rule 4(d) is the topic of this blog post. Rule 4(d) refers to subdivision (d) of Federal Rule of Civil Procedure 4. This subdivision imposes a duty on any defendant who is an individual that is not a minor or incompetent, a corporation or association to avoid the unnecessary expenses of serving the summons.

There are advantages to both the plaintiff and the defendant being served with the use of a notice of lawsuit and request for waiver of service of a summons in that the plaintiff avoids the time and expense of issuing and serving the summons and complaint and the defendant is allowed 60 days after the request for a waiver is sent to respond to the summons and complaint. This is substantially longer than the 21 days allowed under Rule 12(a)(1)(A)(i). And the defendant is still entitled to raise all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action.

However there are disadvantages to the use of a Rule 4(d) notice which are listed near the end of this blog post.

Rule 4(d) states that,

“(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.”

The main disadvantage to the plaintiff with the use of a notice of lawsuit and request for waiver of service of a summons is that the plaintiff assumes the risk that the defendant may not actually receive the notice and request for waiver or that they will not comply and sign and return the waiver.

The main disadvantage to the defendant being served is that they waive any objections that no summons was served, or that the service was defective in any way.

Attorneys or parties who would like to view or download a 5 page sample notice of lawsuit and request for waiver of service containing brief instructions as well as a sample waiver of the service of a summons containing all required statutory language created by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

Posted in California freelance paralegal, Federal civil litigation, Federal litigation, federal rules of civil procedure, Uncategorized, United States District Court | Tagged , , , , , | Leave a comment

Amend judgment to add alter ego as judgment debtor in Federal Court

Amending a judgment to add an alter ego as a judgment debtor in United States District Court is the topic of this blog post. Federal Rule of Civil Procedure 69(a) authorizes this procedure if the requirements are met. This blog post will discuss a motion to amend a judgment to add an alter ego as a judgment debtor in District Courts in the State of California which is within the jurisdiction of the Ninth Circuit Court of Appeals although the basic principles would apply in another state that allows amending a judgment to add an alter ego as a judgment debtor.

Rule 69(a) of the Federal Rules of Civil Procedure states in pertinent part that, “(a) In General.

(1) Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.”

Thus a judgment debtor may be added to a judgment under the alter ego liability theory but only if state law allows for the procedure.

The Ninth Circuit Court of Appeals has stated that the federal courts may permit judgment creditors to amend the judgment to add as a judgment debtor a nonparty alter ego if the forum state’s law allows such amendment.

The laws of some states do in fact allow for such an amendment. In the State of California for example, this procedure is authorized under Code of Civil Procedure section 187. The alter ego liability theory is the most common reason to request amendment of a judgment although successor corporation liability can also be used in appropriate situations.

The alter ego liability theory essentially argues that an identity exists between the new party and the original party, whose participation in the trial leading to the judgment represented the newly added party.

Amending a judgment to add a judgment debtor is a powerful tool if used in the appropriate types of situations.

An excellent example of such a situation would be a case where a professional corporation is owned by one person who then proceeds to drain the assets of the corporation by alleging they are “loan repayments” to the individual and sole shareholder before dissolving the corporation. Then under an almost identical name they continue to practice their profession at the same location as the dissolved professional corporation.   When examined under oath at a judgment debtor examination they fail to produce any corporate minutes or resolutions regarding the alleged loans.

Another example of a good situation might be that of a successor corporation who continues the same exact business as the predecessor except for the name.

Code of Civil Procedure section 187 states that, “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

Numerous decisions of the California Courts of Appeal have stated that Code of Civil Procedure section 187 allows a trial court to amend a judgment to add judgment debtors.   The rationale used is that amending a judgment to add an alter ego as a judgment debtor does not result in the addition of a new defendant but merely inserts the correct name of the real defendant.

And a recent decision from a California Court of Appeal states that great liberality is encouraged in the allowance of amendments brought pursuant to Code of Civil Procedure section 187. That same California Court of Appeal also stated there is no requirement for an evidentiary hearing, a noticed motion is all that is required.

Attorneys or parties who would like to view a portion of a sample 13 page motion to amend a judgment in United States District Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Posted in alter ego judgment debtor, California judgment collections, California judgment recovery, Federal civil litigation, Federal litigation, federal rules of civil procedure, Uncategorized | Tagged , , , , , | Leave a comment

Rule 60(b)(6) motion to vacate judgment

A Rule 60(b)(6) motion to vacate a judgment in United States District Court is the topic of this blog post. Rule 60(b)(6) (Rule 60) states that a Court can vacate a judgment for any other reason that justifies relief. Rule 9024 of the Federal Rules of Bankruptcy Procedure state that Rule 60 applies to most proceedings in United States Bankruptcy Court so this motion can be filed in most bankruptcy cases as well.

Motions filed under Rule 60(b)(6) are harder to obtain than motions filed under clauses 1-5 of Rule 60(b) in that the Courts have ruled that this motion can only be granted in extraordinary circumstances to prevent a manifest injustice. However if used in the right situation this motion makes sense, particularly in situations where the facts of the case do not meet the requirements of clauses 1-5 of Rule 60(b) even though extraordinary circumstances exist.

Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (6) any other reason that justifies relief.”

And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The Ninth Circuit Court of Appeals as well as other Circuit Courts of Appeal have stated that there is no strict time limitation on filing a motion to vacate a judgment under clause (6) of Rule 60(b) although in my personal opinion any party should file their motion as soon as possible after they have knowledge that a default judgment has been entered against them as the motion must be made within a reasonable time and a motion filed under clause (6) is generally hard to obtain except in very unusual circumstances.

However the Ninth Circuit Court of Appeal has stated that Rule 60, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Attorneys or parties in civil litigation in United States District Court who wish to view a portion of an 11 page sample motion to vacate judgment under Rule 60(b)(6) that includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro or like my Facebook page at https://facebook.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

Posted in Bankruptcy Court Adversary Proceedings, Bankruptcy Litigation, California freelance paralegal, Federal civil litigation, Federal litigation, federal rules of civil procedure, motion to vacate | Tagged , , , , | Leave a comment

Deposition notice in United States District Court

A deposition notice in United States District Court is the topic of this blog post.   Federal Rule of Civil Procedure 30 (Rule 30) authorizes the use of depositions in Federal Court and Rule 30 also states that they may also request production of documents of any party to the action at the deposition under Rule 34. This post discusses serving a notice of deposition on a party to the action who is a natural person.

Any party wishing to take the oral deposition of any other party to the action should carefully review Rule 30 as it does contain numerous requirements that must be followed. These rules include requirements that the party not seek to take the deposition before the time specified in Rule 26(d), that the party seeking to take the deposition give reasonable written notice to every other party to the action as well as include the name and address of the deponent if that is available as well as the date, time and location of the deposition on the notice of deposition.

Any party requesting production of documents should be sure to describe the requested documents with as much detail as possible.

Failure to comply with the requirements or failure to include the required information in the deposition notice may result in an objection being made by another party to the action or the deponent.

Attorneys or parties that would like to view a portion of a 9 page sample notice of deposition and request for production of documents for a natural person including brief instructions and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro or like his Facebook page at: https://www.facebook.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

 

Posted in California freelance paralegal, discovery in United States District Court, Federal civil litigation, Federal litigation, federal rules of civil procedure, United States District Court | Tagged , , , , , | Leave a comment

Opposition to motion for judgment on the pleadings in California

An opposition to a motion for judgment on the pleadings in California is the topic of this blog post. Any opposition to a motion for judgment on the pleadings should be served and filed at least nine (9) court days before the hearing under the provisions of Code of Civil Procedure section 1005.

Any party served with a motion for judgment on the pleadings in California should carefully review the motion to determine the grounds for opposition.

The policy in California for over 100 years has been that liberal amendment of pleadings is permitted at any state of the proceeding. Unless a specific statute states otherwise the same basic rules that apply to general demurrers in California apply to motions for judgment on the pleadings.

Common grounds for opposition include that the answer or complaint contained erroneous statements or admissions, that the answer or complaint does state facts sufficient to constitute causes of action or affirmative defenses, that motions for judgment on the pleadings are disfavored whether filed against an answer or complaint, and that leave to amend should be liberally granted if there have been no previous amendments, and that granting leave to amend will not prejudice the moving party as no trial date has yet been set.

Attorneys or parties in California that would like to view a portion of a 10 page sample opposition to a motion for judgment on the pleadings containing brief instructions, a memorandum of points and authorities and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro or like his Facebook page at: https://www.facebook.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Posted in California civil litigation, California freelance paralegal, California legal topics, law and motion | Tagged , , , | Leave a comment