民事訴訟程序 - 筆記

筆記https://www.uscourts.gov/about-federal-courts/types-cases/civil-cases

在聯邦法院開始一個訴訟的流程：

1. 原告（plaintiff）向法院提出訴狀（complaint），其中載明事由與損害賠償。

2. 也同時將訴狀提供給被告（defendant）。

3. 要求管轄法院下令，包括要求被告停止執行對原告造成傷害的行為，或其他救濟。

4. 訴訟準備的程序包括「探索程序（discovery）」以進行取證，要求各方提出相應的資訊，包括出證人、證物。

5. 過程中訴訟雙方可提起各種請求、請願（motions）等，甚至包括撤銷訴訟的請願，並對證人進行取證、宣誓等。

6. 在訴訟進行之前，法官會鼓勵雙方嘗試協議，包括調解（mediation）、仲裁（arbitration）或其他方式進行協議/和解，以避免進入訴訟。

7. 如果協議不成，法院將制定訴訟的時間表。

8. 組織陪審團，也可以不用陪審團。

9. 開始訴訟程序，先判斷資訊是否足夠，並召喚證人作證。

10. 當各種證據都齊備，訴訟進入最終辯論，若在有陪審團的審判中，受過司法訓練的陪審團邀判斷是否被告需要擔負原告損失，判斷損害賠償金額；如果是在沒有陪審團的審判，"聯席法官（bench）"將會作出最終判決。

在訴訟之初，當原告要提起訴訟，通過律師擬出訴狀，交給法院，並以副本通知被告/律師，最初會有傳喚（summon）的動作，因此被告或律師會收到「NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS」的一份文件，除了通知有訴訟外，主要目的是要被告"放棄/waive"真正有人送訴狀到府的動作，這會有額外費用，通過簽署文件可加速早期訴訟的程序。

問了Gemini，以下答案可以參考（基本上與官方notice內容一致）：

what is "NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS"

A "Notice of a Lawsuit and Request to Waive Service of a Summons" is a formal document used in the United States federal court system (and many state court systems that adopt similar rules) to notify a defendant that a lawsuit has been filed against them and to request that they voluntarily "waive" the formal requirement of being personally served with a summons and complaint.

Here's a breakdown of what it means and its purpose:

1. What is "Service of a Summons"?

When a lawsuit is filed, the plaintiff (the party suing) must formally notify the defendant (the party being sued) of the lawsuit. This formal notification is called "service of process," and it typically involves delivering a "summons" (a court order officially notifying the defendant of the lawsuit and the deadline to respond) along with a copy of the "complaint" (the document outlining the plaintiff's claims).

Service of process is crucial because it ensures that the defendant has proper legal notice of the lawsuit, which is necessary for the court to have "personal jurisdiction" over the defendant. Without proper service, the court generally cannot proceed with the case against that defendant.

2. The Purpose of "Waiving Service of a Summons":

Formal service of process often involves hiring a professional process server or a sheriff, which can be time-consuming and costly. To streamline the process and reduce expenses for both parties, Federal Rule of Civil Procedure 4(d) (and similar state rules) allows plaintiffs to request that defendants waive formal service.

The "Notice of a Lawsuit and Request to Waive Service of a Summons" serves this purpose. It essentially says: "A lawsuit has been filed against you. Instead of us having to pay to send a process server to your door, would you please agree to accept this notification and acknowledge receipt, saving both of us time and money?"

3. Key Components of the Notice and Request:

Notice of the Lawsuit: It explicitly states that a lawsuit has been filed, identifies the court, the parties, and the case number.

Copy of the Complaint: A full copy of the complaint (the document detailing the allegations against the defendant) is always enclosed.

Request to Waive Service: It asks the defendant to sign and return an enclosed "Waiver of Service" form.

Consequences of Waiving: It explains that if the defendant signs the waiver, they will have more time to respond to the complaint (typically 60 days from the date the request was sent, compared to 21 days if formally served). It also clarifies that waiving service does not waive any of their legal defenses, such as objections to the court's jurisdiction or the lawsuit's merits.

Consequences of Not Waiving: It warns the defendant that if they refuse to waive service without "good cause" (e.g., they believe the lawsuit is frivolous is NOT good cause), they may be required to pay the costs the plaintiff incurs in formally serving them.

Prepaid Return Means: The request usually includes a self-addressed, stamped envelope or other prepaid means for the defendant to return the signed waiver.

4. Legal Implications of Waiving Service:

Time to Respond: The biggest advantage for a defendant who waives service is usually an extended deadline to file an answer or a motion to dismiss the complaint. This provides more time to seek legal counsel, review the complaint, and formulate a response. 

Cost Savings: Both parties save the expenses associated with formal service.

No Waiver of Defenses: Importantly, waiving service does not mean the defendant admits guilt, accepts the lawsuit's claims, or gives up any legal defenses. They still have all their rights to challenge the lawsuit's validity, the court's jurisdiction, or the factual claims.

Expedited Process: For the plaintiff, a successful waiver speeds up the litigation process, avoiding potential delays and complications of formal service.

Duty to Avoid Unnecessary Expenses: Under federal rules, a defendant located in the U.S. generally has a "duty to avoid unnecessary expenses of serving the summons." If they refuse to waive service without good cause, the court must impose the costs of service on them.

In essence, it's a courteous and cost-effective way for a plaintiff to initiate a lawsuit, offering the defendant an opportunity to cooperate in a mutually beneficial procedural step. However, a defendant should always consult with an attorney before signing any legal document, including a waiver of service, to fully understand its implications in their specific case.

Ron