| Law Encyclopedia: 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 her 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; generally registered mail is 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 her.
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 effected. 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. This form of service is deemed complete, or effective, a certain time after the first publication, such as thirty days, if the required subsequent publications are in fact made.
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, anyplace 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 her 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 her 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, a partnership can be sued by service of process on each partner.
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 eighteen 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.
A professional process server may be hired where service does not have to be made by an officer, but this is not necessary. 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, but 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 she 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 she is required to participate in judicial proceedings. The purpose of this immunity is to encourage the active participation by witnesses and parties that helps ensure fair trials. 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.
