What is Process Service?

This article will provide guidance on What is process service? In the United States, ‘service of process or ‘process service’ mandates that all parties to a lawsuit or administrative proceeding be given notice of the action. The transmission of a court case’s documentation, known as ‘process,’ is how a case is initiated. The term ‘service of process refers to the official delivery of legal papers such as a summons, complaint, subpoena, writ, or other order of the court. A process server gives these papers to the defendant or plaintiff in a lawsuit. Someone who is not a party to the litigation must serve the papers.

In the United States, all parties to a lawsuit must be given notice before any legal action is taken against them. Having legal documents served on defendants is essential to ensuring their rights are protected under the law. The norms and regulations of civil procedure and the legislation governing process service vary from one state to the next. 

HOW IS PROCESS SERVICE ENACTED

The person or entity initiating the legal action is required to notify the other party and provide any relevant legal papers to them. It is impossible to go further with the lawsuit without providing adequate service. By doing so, the other party is made aware of the allegations against them and given the opportunity to respond within the specified time range.

Process service refers to the papers filed to initiate legal action. The defendant must be served with a summons and a complaint, which sets out the charges against them. Citizens have a legal right to be given adequate notice of any summons filed against them, and service of process ensures that they get this notice. Legal service of process is strictly governed by statute. The court has the discretion to revoke a ruling or have a matter dismissed if service was not conducted in accordance with the law. 

Anyone citizen or lawful resident of the state is at least eighteen years old and is not a party to the litigation may, in certain jurisdictions, serve legal documents. Legal papers must be served by a third party or the county sheriff or marshal if the parties cannot serve them themselves. The process server must serve the papers in the allotted time frame and present evidence of service.

PERSONAL SERVICE OF LEGAL PAPERS

Different types of cases and different courts may call for the employment of different methods of serving legal papers. Legal documents are considered ‘personally served’ when delivered to the defendant in person.  Personal service is completed when the defendant or respondent is properly identified, the papers are handed to them, and they are informed that they are legal or court documents. If the defendant does not accept the documents in hand, destroys them, or disposes of them, it will not invalidate the service.

A proof of service must be completed by the server, including the date and time of service, the location of service, the mode of service, and any other relevant information that may be required by the court. The evidence of service is returned to the claimant OR appellant for court filing with the server’s signature. When papers are served personally, they are considered served on the day they are received.

SUBSTITUTE SERVICE

‘Substituted service’ is a classification of service. The legal process of service occurs when papers are placed with an adult household member at the residence of the designated party or with a manager or higher-up at the company. Service by posting in a conspicuous location (with a confirmed copy sent through certified mail) may also be appropriate in certain cases. In some states, a ‘Substitute Service is acceptable. This is when a server serves someone other than the defendant. Substitute service should only be done as a last resort and as part of the due diligence process.

If the named party in the documents cannot be found, the court may allow service by publication in a newspaper. Before this can happen, the individual is often asked to prove to the court that a server made a reasonable attempt actually to serve the defendant or the person named. This is where the hiring of a professional process server comes into play.

Depending on the state, a process server may be able to serve a defendant by leaving court papers at the defendant’s residence with an adult resident who can accept process service. In certain jurisdictions, the defendant must be served by having a copy of the papers sent to their last known address and another process service copy posted on the defendant’s door.

In addition to leaving the process service papers with a suitable person at the house of the party being served, the process server may be required to mail the papers to the party being served in certain states. Substituted service may be allowed at any time or after a single effort at personal service, depending on the rules of each state. The statutes of limitations for determining when something is considered finished also differ by state. 

Substituted service is usually not recognized by the courts unless evidence is presented to the judge proving that both the personal delivery to the defendant’s residence and the mailing of the notice were completed.

ALTERNATIVE SERVICE OF PROCESS

Some jurisdictions allow ‘alternative service’ of process if personal or substituted service is not practicable, although this must be authorized by a court in advance. Afterward, the court will have to determine what kind of notice will reach the defendant. The other methods of process service may include publishing, postal service, or mailing.

One possible method of serving is via mail, which the court may approve. Legal papers are often served via certified, registered, or express mail to the defendant’s place of abode or the defendant’s last known postal address. The majority of states need a signed receipt from the person being served in order for the postal service to be valid.

Publication service requires the filing of papers in a widely circulated newspaper in the county where the case is proceeding or where the defendant or responder resides.  Some states allow both mailing and posting of eviction papers on the property in question. Documents are served by mail or posted after other methods of process service have been used without success. In certain jurisdictions, the party that posts the notice must sign and submit a document to the court detailing the dates on which the notice was posted and deleted. To serve someone in most states, it is often the requirement to send them certified mail with a return receipt desired. The court clerk will often handle the mailing for the applicant for a nominal fee. In the event of a successful outcome, this amount may be recouped. 

While mailing documents is a simple and inexpensive option, most jurisdictions require the defendant to accept the letter before it may be considered served physically. (In certain jurisdictions, process service may still be made even if a defendant returns a certified letter.) It is common practice for companies and many people to sign for incoming mail. But many never bother, convinced by intuition or experience, that certified mail brings nothing but bad news. An informal poll of court clerks indicates that around half of certified postal deliveries of legal process service documents are accepted. Only a few states recognize first-class mail as a valid method for processing services.

NAIL AND MAIL SERVICE

Service to certain customers may provide unique challenges. If the server makes ‘reasonable attempts to serve a defendant and is unsuccessful, there is a mechanism that enables ‘substituted service’ in certain jurisdictions. ‘Nail and mail’ is a common shorthand for this method of process service since, in certain areas, the server does not need to leave the claim with a person if they are unable to serve the defendant directly. One process service copy may be tacked to the defendant’s door, and the other can be sent.

This is how substituted service typically works in the states: A non-party adult may serve small claims documents by leaving a copy at the defendant’s home with a responsible adult over the age of eighteen (who must be informed what the papers are about) or at the defendant’s place of business during regular business hours with the person in charge (who must be told what the papers are about). A second process service copy must be sent to the defendant through first-class mail on the same day the original documents are served. After ten days have passed after mailing, the process service is considered complete. It is vital to make sure an adult who is not a party to the litigation takes care of everything, including sending the duplicate copy.

If the plaintiff has reasonable cause to think that the defendant is not on active service, the clerk will usually accept a Declaration of Nonmilitary Service signed by the plaintiff. 

DUE PROCESS REQUIREMENTS FOR PROCESS SERVICE

In most cases, process service documents may only be served in the state where the lawsuit was first filed. If the defendant lives or does business in a state, they may serve legal documents at any address inside the state. But the individual cannot serve someone in another with papers filed in a different state. Exceptions include cases involving motor vehicle accidents or claims against out-of-state property owners. This form of process service claim may often be served in another state. The clerk of the local small claims court may explain the procedure that is followed in their jurisdiction.

A lawsuit requires process service on all defendants in a plaintiff’s or all claimants in a defendant’s claim. This is true regardless of marital, cohabitation, or commercial relationships between the parties. Some states’ sheriff’s departments are getting out of the business of serving legal documents. This might need working with a third party, individual, or business.

If process service is completed, the signed post office receipt will be returned to the court clerk who originally sent the certified mail.  However, unless the individual informs the court, it will not know whether or not the documents were submitted in person, by substituted service, or through regular mail. After the process service has been made, the process server must file a document with the court clerk called a Proof of Service. The individual providing process service must sign the Proof of Service form. In the event that the defendant files a counterclaim, they must also utilize a Proof of Service. 

The Due Process provisions of the United States Constitution forbid a court from exercising personal jurisdiction over a defendant without first providing the defendant with adequate notice of the court’s activities. It is the responsibility of the plaintiff to ensure that the defendant is given a copy of the complaint and a court summons in accordance with this regulation. 

In most cases, the mailing process to the defendant is insufficient. Defendants must be personally served with the summons and complaint or have an appropriate person accept process service on their behalf. Any adult not a party to the litigation may normally serve as a process server. Attorneys seeking to serve defendants may do so by employing a professional process server.

Defendants may opt out of a personal serving of process under the Federal Rules of Civil Procedure. Those accused who do so are given additional time to formulate a defense.  Defendants that reject service must pay the plaintiff’s expenses related to obtaining personal delivery of the complaint.

FOR ASSISTANCE SERVING LEGAL PAPERS

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Sources

1. Service of process is also important because it notifies the defendant that the plaintiff is bringing a lawsuit and that the courts will hear the impending lawsuit. 

O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir., 2003):

2. Combs v. Nick Garin Trucking, 825 F.2d 437, 443, (D.C. Cir. 1987)

3. When personal efforts to serve a person have been unsuccessful, substitute service is utilized. Defendant/respondent’s service choices and availability may vary by state, but all guarantee that the defendant/respondent is made aware of the pending legal action.

4. In order to serve a defendant in a civil case, the person will need a street address if all they have is a P.O. box. A written declaration explaining their need for the address only for service of legal documents in an ongoing dispute is required, following the adherence to section 352.44e of the Postal Service’s Administrative Support Manual. For this service, the Post Office does not charge a fee. 39 CFR Section 265.6(d)(4) (ii).

5. In most cases, a default judgment may be obtained against a defendant who has been duly served but who fails to appear in court, but this is not the case when the defendant is a member of the armed forces (other than the reserves).

6. Farm Credit Bank of Baltimore v. Ferrera-Goitia, 316 F.3d 62, 68 (1st Cir. 2003)

7. Refer to Federal Rule of Civil Procedure 4(d).