By: Akanksha A. Panicker
Service of process abroad always means a menu of choices, each of which comes with trade-offs of costs, certainty, and punctuality. No universal method of service can be achieved in these cases, and research must be done to determine the most efficacious method of service in this particular case.
In this regard, issues of timing almost always come up in terms of service of process abroad. Even in domestic cases, timing is the main facet of litigation strategy. Since service of process abroad takes longer than service in the state, the time taken to serve the documents turns determinative in a foreign jurisdiction, particularly where the statute of limitations may expire.
Even if the statute of limitations isn’t an issue, the speed of the method of service is paramount. Often, process service is the fastest means of executing service, if permitted. This is followed by service through the Hague Service Convention Central Authority and mail service (questionable since this might be more unpredictable as some countries do not permit service by mail, and even if they do, require a return receipt.) Letters rogatory take the longest time and is generally considered to be the slowest method of service.
By: Akanksha A. Panicker
Service of process essentially occurs when the party to a lawsuit notifies the other party as to the beginning of legal proceedings. This is done when appropriate notice of initial legal action as ordered by a court or a tribunal is sent to the party so that jurisdiction is exercised and the person has to respond to the proceeding before the court. The ‘process’ part of ‘service of process’ refers to the set of documents that is to be delivered, allowing for notice to be furnished.
Different jurisdictions mean different rules for an appropriate service of process. However, a summons and other related documents must be served upon the defendant personally. Sometimes, this might be relaxed, and service may be provided upon another person of suitable age and discretion at the person’s residence or place of business or employment. Service of process through the mail or through procedural rules and court order may be authorized. A prime example of the same is service by publication, done when an individual cannot be located in a particular jurisdiction. It must be understood that proper service of process establishes personal jurisdiction of the court on the individual served. Failure to participate by means that the person is in default, and relief may be granted to the petitioner. Service of process in cases filed in the United States District Courts is governed by Rule 4 of the Federal Rules of Civil Procedure
Drafting the Complaint
You start a lawsuit by filing a complaint. In some circumstances, you file a petition or a motion.
The court has several complaint forms that you may use in drafting your complaint. The forms are available online and at the Pro Se Intake Unit. You may also write your own complaint without using a court form.
All complaints must be in English on 8-1/2” x 11” paper and include:
- a caption with the court’s name,
- the title “COMPLAINT” next to the caption,
- a statement of jurisdiction,
- claims in numbered paragraphs, each limited as far as practicable to a single set of facts,
- the relief sought,
- the words “JURY TRIAL DEMANDED” if you want the case decided by a jury at trial,
- your signature, address, e-mail address, and telephone number.
The court system can be confusing and it is a good idea to get a lawyer if you can. The law, the proofs necessary to present your case, and the procedural rules governing cases in the Law Division, Civil Part are complex. Since valuable claims or potentially heavy judgments may be at stake, most litigants appearing in the Law Division, Civil Part has a lawyer. If you are being sued, please contact your insurance company to see if they might provide a lawyer for you. Most likely your opponent will be represented by a lawyer. It is recommended that you make every effort to obtain the assistance of a lawyer. If you cannot afford a lawyer, you may contact the legal services program in your county to see if you qualify for free legal services. The telephone number can be found online or in your local yellow pages under “Legal Aid” or “Legal Services.”
Small Claims Court
Small claims are lawsuits for $3,000 or less. Renters can file for a return of a security deposit of $5,000 or less in small claims court.
Examples of small claims:
- A person or company failed to comply with a written or oral contract.
- Your car was damaged in an accident.
- You paid money as a down payment and want it returned .
- Your property was damaged or lost.
- You bought a product that doesn’t work.
- Work you paid for was faulty or not completed.
- You want to be paid for work you did.
- Someone wrote you a bad check.
- You gave a landlord a security deposit that was not returned. NOTE: The limit for security deposit returns is $5,000 in small claims court.
In certain kinds of cases, you may be able to get the Debtor’s driver’s license or professional or business license suspended until the judgment is paid.
Here are some examples:
• If your claim had to do with the Debtor’s car or how he or she drove a car, the Department of Motor Vehicles may suspend the Debtor’s driver’s license and car registration until your judgment is paid. The judgment must be for $1000 or more, and it must be unpaid for more than 15 days.
• If your claim was about the Debtor’s licensed or certified business, notify the state or local licensing agency if the Debtor has not paid you. The agency may decide to revoke, suspend, or refuse to grant or renew a business license. It must be at least 35 days since the Debtor received notice of the judgment.
• In a Small Claims Court case, if a Debtor has three or more unpaid recorded judgments including yours, but he or she has the ability to pay them, you may be able to sue the Debtor for three times more than your original judgment. This is called treble damages. Ask the Small Claims Court Clerk if the Debtor is listed in the Small Claims Court’s index of unsatisfied judgments.
When a judgment is entered in the Civil Court it is enforceable for a period of twenty years for money only, it is not a lien against real property. Nor is a judgment entered in one county a lien on real property in any other county. If a judgment-creditor wishes to enforce a judgment against real property, he or she must follow the procedure below for “transcribing” the judgment.
A transcript is a paper containing the essential information of the judgment, certified by the clerk in the county where the judgment is entered. Continue reading
By Lee Ann Obringer
You step in a puddle of spilled cooking oil in a grocery store and break three bones in your hand. You’re a concert pianist. How can you recover your lost income?
Your landlord claims you broke several things in your apartment that you didn’t pay for. You know they were broken when you moved in. The forms you signed when you moved in don’t specifically mention those items. How do you keep from having to replace something you aren’t responsible for? Continue reading
By Lee Ann Obringer
Chances are, we all know someone who is divorced — probably several someones. In 2000, there were over 957,200 finalized divorces in the United States. The U.S. Census Bureau says that 50 percent of all marriages entered into today will end in divorce. That’s a lot of broken homes, heartaches and paperwork, not to mention money spent on attorney fees and court costs.
But, some say those percentages of future doomed marriages have to be interpreted based on other factors. Barbara Whitehead and David Popenoe’s “The State of Our Unions” (2004), which was prepared at Rutgers University for the National Marriage Project, says that there are several important social factors that affect that 50 percent estimate. For example, your risk of divorce decreases by: Continue reading
By Marie Willsey
To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.” Frederick Douglass, 1860.
Douglass’ words echo the beliefs of the founding fathers, who considered freedom of the press so important that they established its rights in the First Amendment to the U.S. Constitution. The press played an important role in the events leading up to and during the American Revolution, when newspapers helped spread information about the struggle for independence from Great Britain across the colonies. The founders fought to preserve the very freedoms that helped the young nation to gain support for its ideals. Continue reading