A Few Thoughts on Process

October 10, 2017 § Leave a comment

  • The sole purpose of process is to give parties notice that there is a legal proceeding involving them. They are invited to participate.
  • Once a party is served with process, or once a party voluntarily appears and participates, the court has personal jurisdiction over that person for the entire remainder of the proceeding, all the way to final judgment, and no further process is necessary (But see the exception of R81 below).
  • When a party voluntarily submits to the personal jurisdiction of the court, no further process is necessary. A person can voluntarily submit to personal jurisdiction by filing a lawsuit as a plaintiff, or by filing a responsive pleading and/or counterclaim, or by simply appearing personally and participating.
  • R4 process requires the defendant to answer within 30 days.
  • R81 process requires the defendant to appear on a day certain. No answer is required, but the defendant may file an answer if he chooses, or if the court orders it. If the defendant does not appear on the specified day, or has not filed a responsive pleading contesting the matter on or before the specified day, then the court can hear the matter on the merits and rule accordingly.
  • We refer to the day specified in the R81 summons as the “return day” because process is “returnable” to that day.
  • If a matter can not be heard for whatever reason on the return day, then you must get an order signed that same day continuing the case to another day certain. And every continuance order thereafter has to be entered on the same day as that to which the case was continued. If you do not do this, your R81 process will be void, and you will have to re-issue process.
  • You do not need to issue process to the plaintiff when you file a counterclaim. That’s because the court already has personal jurisdiction over the plaintiff because he invoked the jurisdiction of the court. Once a party is in the court’s personal jurisdiction, you simply need to give notice per MRCP 5.
  • You can not obtain process by publication over a resident unless you first make diligent inquiry for that person’s whereabouts and then file an affidavit per R4(D)(4) that he is a resident but is not to be found in the state. Only after the affidavit is filed can the publication commence.

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