By: Akanksha A. Panicker
Process serving is a part of the United States’ legal system, referring to the delivery of key legal documents like the complaint, summons, etc. It refers to the procedure through which notification is provided to the defendant as to the legal action initiated against them and is done to ensure that the court’s personal jurisdiction requirements on the parties are fulfilled. If the defendant ignores further pleadings or fails to participate in the proceedings, the court may find the defendant in default and award relief to the petitioner.
The server can be [A.] a friend or relative, [B.] a co-worker [C.] county sheriff or marshal [D.] a process server; or [D.] anyone over 18. However, it is necessary to ensure that whoever the server is, they are of age (eighteen years old at least) and that they are a disinterested party who is not remotely party to the case. The service then needs to be done so that the opposition has enough time to prepare. Finally, the server needs to fill out a proof of service form detailing the service report and returning said proof to file the same with the county clerk in the court.
[1.0] ROLE OF PROCESS SERVERS
The job of the process servers can far extend beyond the service of documents. Loathing a defendant is often tricky, and a significant portion of defendants are evasive of service against them. Reluctant defendants use various maneuvers to avoid service, and the onus lies upon the process server to locate them.
Skip tracing is needed to serve someone who plain doesn’t want to be served. They’ll take steps to avoid this, changing addresses or jobs, or just dropping off the grid as much as they possibly can. Service is especially hard here if it’s for a person whose particulars one does not have.
If this happens, a process server intervenes. They’re armed with access to higher-technology services, experience from performing the skip trace routine before, and insider information. Even if their address seems like an internet search away, process servers are faster and more efficient, often relying on colleagues to pool resources and locate the individual.
Additionally, a process server actually knows how to go about skip-tracing legally. It’s difficult to maneuver the mire of federal, local, and state laws, especially with trespass and privacy issues, but process servers are trained to be able to work past the same. It must be remembered that trespass is illegal even for process servers, even if the trespass was not meant maliciously. The clash between CPLR and trespass law has historically resulted in the trespass provisions triumphing. In nearly every state, process servers are restricted from trespass and can render service invalid and illegal.
Furthermore, process servers are expected to be well versed in the laws of the relevant area. Delivering notifications can mean a lot of contingencies. Servers must know what to do if a defendant refuses service or is unavailable. If the process delivery falls short legally, the entire case against the defendant may be dissolved. Without proper service, a suit is impossible. The court needs to acquire personal jurisdiction over a defendant, which cannot be done without proper service. Furthermore, the service of process is key to adhere to the Due Process Clause of the United States Constitution. The defendant needs a chance to put forth their side of the matter, and denying them the same is a violation of fair trial rights. Process service is a practical embodiment of said rights insofar as the defendant needs to know about the complaint against them and needs to be physically present in court for the same. The complaint and summons that are levied onto the defendant equate to “process.”
[2.0] WHO ARE PROCESS SERVERS
Individual requirements to become a process server vary by each jurisdiction. However, it is common that a process server not be a party or attorney involved in the case. Additionally, he or she must be 18 years or older. These are the basic rules that are part of the Federal Rules of Civil Procedure. In some federal cases, the court can order service be made by a United States marshal, United States deputy marshal, or a person who has been appointed by the court. In-state cases, it is common for the sheriff’s department to serve process on the defendant. Professional process servers are also commonly used for this task.
Any individual can be a process server. The main job of the process server is to deliver documents to individuals. This leads process servers to be in close contact with lawyers and other legal services and would require the server themselves to know about the relevant fields of law since it is their job to furnish the documents while adhering to the state’s laws.
There is no general set of rules for process servers. However, there are local rules set for their qualifications. The city of New York requires that all individuals looking to serve the five (5) boroughs area (Manhattan, Brooklyn, Bronx, Staten Island, and Queens) must be licensed through the New York City Department of Consumer Affairs. For the areas that require licensing, a Process Server Individual License is required for a person who serves five or more processes in any one-year period, even if it may be through substituted service. Attorneys admitted to practice in New York State, and government employees who serve process part of their job are exempt from this licensing requirement.
Types of Service
There is an assortment of approaches to serve another party. Not all strategies are accessible in all cases. Any endeavors of service require consultation regarding the opposition to ensure that all lawful customs are satisfied. On the off chance that administration of service is not conducted appropriately, there is no option to advance with the case, and purview can be challenged anytime in the court
[3.0] HOW TO APPLY FOR A PROCESS SERVERS LICENCE.
The main requirements to become a New York Process server are [A.] a completed basic individual license application and all necessary paperwork, [B.] background check [C.] passport-sized photo [D.] New York Process Server Bond and [E.] licensing fee.
To actually become a server in New York, it is necessary to fill in a Basic Individual License Application. The New York City Consumer Affairs Department handles the requirements of process service. There must be actual verifiable identification of the applicant which may be seen through their [A.] driver’s license or a non-driver’s license identification issued by a State Department of Motor Vehicles [B.] license or permit issued by a government agency [C.] passport or alien card/green card or [D.]city, state, or Federal employee ID card. The provision of said ID facilitates a background check. A clean record is ideal for a licensed process server, although a conviction does not immediately prevent an individual from becoming a process server. Furthermore, it is necessary to provide a passport-sized photo.
Purchasing a New York Process Server Bond is an imperative part of the process, aiming to protect court and clients by functioning essentially like insurance. For individuals, it totals $10,000 and extends up to $100000 for agencies. How much is owed in this bond is based on credit scores to recoup as well. There consequently, must be a proof of bond requirement, which could either be [A.] a copy of the surety bond assigned by the applicant with the Department of Consumer Affairs named the Certificate Holder. Your name and address must be the same on all documents and a copy of the bond receipt stating that the bond has been paid in full or [B.] a Process Server Individual Trust Fund Enrolment Form and additional Proof of Bond Denials or [C.] Process Server Individual Employee Bond Exemption.
For the Process Server Individual Trust Fund, it must first be understood that this is an option only if the bond cannot be procured. Consequently, there must be proof submitted that the individual has applied to at least two different surety bond companies and has been rejected by both of them. Furthermore, there is a necessity to pay the enrolment fee to be a part of the Trust Fund. This is a one-time payment and is directly transferred to the Department of Consumer Affairs.
The third option is limited to servers, which are part of an agency already. The Process Server Individual Employee Bond Exemption is available to employees of a process serving agency. Still, it requires proof of the agency’s bond and the Process Server Individual Employee Bond Exemption certification. Furthermore, the Department of Consumer Affairs must be notified every time a process server stops being exclusively bound to service with the agency.
As seen, the burdens to prove the capacity of process service is different for companies and individuals. Process service agencies must complete the Roster of Process Serving Agencies and notify the Department of Consumer Affairs of any change within five days. On the other hand, individual process servers must take the Process Server Individual exam that deals with the relevant laws that the area would require. Without passing this exam, an individual is not qualified to be a process server.
Furthermore, the individual must fill out the requisite Electronic Device Certification, Recordkeeping Certification, Child Support Certification Form, and Granting Authority to Act Affirmation applications. Only the applicant must fill out said certifications. If it were to be filed by someone other than the license applicant, the license applicant would have to submit a Granting Authority to Act Affirmation.
After passing the exam, the process server would have to pay the requisite licensing fees. This includes the license fee itself and a fingerprint processing fee to examine any criminal record that an individual may have. All process servers must have their fingerprints on file.
A process server must maintain a Registry Ledger. This is essentially a logbook that holds all records of service by the license. This record must be legible, with corrections being made by merely running a straight line through the erring fact rather than obliterating or erasing the material. Furthermore, it is necessary to maintain electronic records in a responsible manner impervious to tampering. This would comprise either [A.] entering data in the Department of Consumer Affairs-approved format for Excel spreadsheets, [B.] using a third-party document management system as per guidelines laid down by the Department of Consumer Affairs or [C.] scanning the logbook into a PDF. In case of any contested service, licensed process servers and agencies must report traverse hearings to the Department of Consumer Affairs within ten days of receiving notice.
New York’s stringent service of process rules ensures that deceitful process could be held liable. Intentional failure to provide service in the hopes of a false affidavit, and consequently, a default judgment is a crime. The stringent bar to process servers ensures due diligence and the prevention of tactics like sewer service.
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1.Butler v. Ratner, 662 N.Y.S.2d 69 (City Ct. 1997)
2.Information for Process Server Industry. (n.d.). Retrieved October 22, 2020, from https://www1.nyc.gov/site/dca/businesses/info-process-servers.page
3. New York General Business Law § 89-cc and Title 6, Rules of the City of New York § 2-233 for requirements
4.Title 6, Rules of the City of New York § 2-236(c).