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Service of Process
Last updated Sunday, April 7, 2024
Service
of Process
Delivery
of a writ, summons, or other legal papers to the person required to respond to
them.
Process is the general term for the legal document by which a
lawsuit is started and the court asserts its jurisdiction over the parties and
the controversy. In modern U.S. law, process is usually a summons. A summons is
a paper that tells a defendant that he is being sued in a specific court that
the plaintiff believes has jurisdiction. Served with the summons is a complaint
that contains the plaintiff's allegations of wrongdoing by the defendant and
the legal remedy sought by the plaintiff. The summons also informs the
defendant that he has a specified number of days under law to respond to the
summons and complaint. If the defendant does not respond, the plaintiff may
seek a default judgment from the court, granting the plaintiff the legal relief
specified in the complaint.
Rules of Civil Procedure and Criminal Procedure determine the
proper form of legal process and how it should be served. The rules vary among
federal and state courts, but they are meant to give the defendant notice of
the proceedings and to command him to either respond to the allegations or to
appear at a specified time and answer the claim or criminal charge. The concept
of notice is critical to the integrity of legal proceedings. DUE PROCESS
forbids legal action against a person unless the person has been given notice
and an opportunity to be heard.
Process must be properly served on all parties in an action.
Anyone who is not served is not bound by the decision in the case. A person who
believes that proper service has not taken place may generally challenge the
service without actually making a formal appearance in the case.
Whether service was proper is usually determined at a pretrial
hearing. A defendant must request a special appearance before the court. A
special appearance is made for the limited purpose of challenging the
sufficiency of the service of process or the Personal Jurisdiction of the
court. No other issues may be raised without the proceeding becoming a general
appearance. The court must then determine whether it has jurisdiction over the
defendant.
Methods
of Service
Three basic methods are used for service of process: (1) actual,
or personal, service, (2) substituted service, and (3) service by publication.
Although each method is legally acceptable, Personal Service is preferred
because it is the most effective way of providing notice and it is difficult
for the defendant to attack its legality. Personal service means in-hand
delivery of the papers to the proper person. Traditionally personal service was
the only method of service allowed by law because it was best suited to give
the defendant notice of the proceedings.
Substituted service is any method used instead of personal
service. Forms of substituted service vary among different jurisdictions, but
all are intended to offer a good chance that the defendant actually will find
out about the proceedings. If a defendant is not at home, many states permit
service by leaving the summons and complaint with any person at the defendant's
home who is old enough to understand the responsibility of accepting service.
Some states permit service by affixing the summons and complaint to the
entrance of the defendant's home or place of business and then mailing a copy
of the papers to that individual at his last known address. This method is
often called "nail and mail" service. A number of states allow
service simply by mailing the papers to the defendant's actual address;
registered mail is generally required. States also consider service valid if
the defendant's property is attached, or legally seized, within the state and
the papers are then mailed to him.
Under the laws of some states, substituted service may be used
only after diligent efforts to effect personal service have failed. Some forms
of substituted service may have to be tried before others can be used. Other
states permit substituted service at any time or after a single attempt to find
the defendant and serve the papers personally.
A third method of service is publication of a notice in a
newspaper. Publication is also called constructive service because the court
construes it to be effective whether the defendant actually reads the notice or
not. Generally, service by publication is allowed only by leave of the court,
which usually grants permission only when the plaintiff can show that no other
method of service can be affected. Usually the legal notice must be published
in at least one newspaper of general circulation where the defendant is likely
to be found or where the court is located, or in both places. Ordinarily the
notice must be published on more than one occasion, such as once a week for
three weeks.
In truth, courts realize that defendants rarely read notices
published in newspapers, but the effort must be made when the defendant cannot
be found and served in any other way. Plaintiffs prefer not to use publication
because it is expensive and a court might later find that the defendant could
have been served personally.
Where
Process May Be Served
Legal papers may have to be served within the geographical reach of
the jurisdiction, or authority, of the court. If the service itself is the
basis for the court's jurisdiction over the defendant, then the service usually
must be made within the state. For lower-level courts, service may have to be
made within the county where the court is located. Trial courts of general
jurisdiction usually permit service anywhere within the state. Service of
process for an action in a federal district court may be made anywhere within
the state where the court sits or, for some parties, any place in the United
States that is not more than one hundred miles from the courthouse.
A variety of statutes permit state courts to exercise authority
over persons not physically present within the state. These are called LONG-ARM
STATUTES. They specify factors, other than the defendant's physical presence
within the state, that provide sufficient justification for the court to
exercise jurisdiction over the defendant, such as doing business within the
state or having an automobile accident within the state. When one of these
factors exists, the prospective defendant can be served with legal process
outside the state because the service itself is not the basis of the court's
jurisdiction.
Substituted or constructive methods of service may be used on a
defendant who comes within the long-arm jurisdiction of the state. For example,
many states permit a plaintiff to serve an out-of-state resident who was
involved in a traffic accident in the state by serving legal process on the
attorney general of the defendant's state and then sending copies to the
defendant at his residence. The statute makes the attorney general the agent
for the service of process on out-of-state drivers. Such a statute is based on
the theory that a nonresident driver has consented to this method of service by
using the highways and facilities within the state.
Who
Must Be Served
Service of process is effective only if the right person is
served. When the defendant can be described but not named, service by
publication can be made with a fictional name like Richard Roe. Where the
defendant is not a natural person but a corporation, statutes generally provide
for effective service on a managing agent, a director, an officer, or anyone
designated an agent in the corporation's application for a charter or a license
to do business within the state.
If the person to be sued is a child or a person incapable of
managing his own legal affairs, service may be made on a parent, guardian, or
someone else entrusted with the defendant's care or affairs. The plaintiff may
ask the court to designate a proper person when there is doubt. An estate can
be sued by service of process on an executor or administrator. The plaintiff
may ask the court to appoint such a person if none has yet been named.
When more than one person is being sued, each of them must be
served. For example, if a partnership is sued, each partner must be served.
When
Papers Can Be Served
The proper time for service of process depends on the law of the
jurisdiction. Service must be made within the time that the Statute of
Limitations allows for starting that particular kind of action because it is
service that starts the lawsuit.
Many states have long prohibited personal or substituted service
on Sunday. Service is also prohibited on legal holidays in some states.
Process
Servers
Every jurisdiction specifies who may serve process. Many states take
a simple approach and allow service by any person over the age of 18 who is not
a party to the suit. Under federal law service of anything other than a
summons, complaint, or subpoena must be made by a U.S. marshal, a deputy
marshal, or someone else appointed by the court. Some states also follow this
procedure and designate that such qualified service shall be by a sheriff or
similar peace officer.
In some jurisdictions anyone who serves more than a specified
small number of summonses a year must be licensed. Laws generally provide for
fines or imprisonment of a process server who fails to obtain a required
license. A court will not dismiss cases started with service by an unlicensed
process server.
For the most part, courts have allowed process servers to use any
means necessary to serve papers on reluctant defendants as long as no law is
broken. For example, a process server can knock on the defendant's door and
state that he has a package for the defendant. If the defendant opens the door,
the resulting service of process is valid.
A defendant cannot avoid the service of process by refusing to
accept delivery of the papers. Many cases have upheld service where the process
server dropped the papers at the defendant's feet, hit the defendant in the
chest with them, or even laid them on the defendant's car when he refused to
get out or open the door.
Invalid
Service
The tricks of serving process papers can, however, reach a point
that the courts will not tolerate because they subvert the purpose of service
or threaten to disrupt the administration of justice. The most intolerable
abuse is called sewer service. It is not really service at all but is so named
on the theory that the server tossed the papers into the sewer and did not
attempt to deliver them to the proper party. Sewer service is a Fraud on the
court, and an attorney who knowingly participates in such a scheme can be
disbarred.
Anyone who serves process must file an Affidavit of service with
the court, giving details of the delivery of the papers. If the facts in an
affidavit of service falsely assert that the papers were delivered, the person
who swears to them can be prosecuted for the crime of perjury. In addition, the
plaintiff's action will not have commenced. If the statute of limitations has
expired by the time the true facts of the improper service are disclosed, the
action is completely barred and the plaintiff has lost the right to sue.
Service is also invalid if the defendant has been enticed into the
jurisdiction by fraud. Courts have ruled that luring a potential defendant into
the state in order to serve him with process when no other grounds exist to
assert jurisdiction over him in that state violates the individual's right to
due process of law. Service of process by fraud is null and void.
Immunity
from Service of Process
Courts typically grant Immunity from process to anyone who comes
within reach of the authority of the court only because he is required to
participate in judicial proceedings. The purpose of this immunity is to ensure
a fair trial by encouraging the active and willing participation of witnesses
and parties. If a witness was discouraged from coming into a state because of
the risk of being sued in that state, justice would not be served.
Immunity also protects nonresident attorneys, parties, and
witnesses from being served with process in unrelated actions while attending,
or traveling to, criminal or civil trials within a state. This immunity has
been extended to protect out-of-state parties who enter a state not for trial
but to settle a controversy out of court. Diplomatic personnel, ambassadors,
and consuls who are in the United States on official business are also immune
from process.
Nevada
Commercial Registered Agent
Entity # E0502742015-6
NV Business ID NV20151637034
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© 2024 Marc Gohres
Revised April 7, 2024 10:24 AM
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