According to the 5th and 6th Amendments of the U.S. Constitution, it is required that each party to a lawsuit is to be fully notified of any legal actions being taken against them. What this means is that no court can rule against you, unless you have been properly informed of the case and given a chance to defend yourself. This procedure in which someone is informed of a pending case against them is known as service of process.
Each state has differing service of process rules. Generally speaking, a federal summons must adhere to the following rules in order to be lawful and actionable:
- Contain the name of the court;
- Contain the name of all parties involved;
- Be directed towards the defendant in the matter;
- Contain the name and address of the plaintiff’s attorney, or the plaintiff themselves if they are unrepresented;
- Contain the timeframe within which the defendant must appear in court and defend themselves;
- State the penalties should the defendant fail to appear and defend;
- Be signed by the issuing federal court clerk; and
- Contain the court’s official seal.
To summarize, service of process refers to the process in which a person is notified of legal action being taken against them. The Constitution does not allow courts to exercise personal jurisdiction over a defendant unless that defendant has been sufficiently notified. In order to adhere to these rules, plaintiffs are required to make arrangements so that the defendant is served with both the court summons and a copy of the plaintiff’s complaint, or reason for their action. These documents together are referred to as “process.”
Who Is Supposed to Serve the Process?
In terms of actually serving the process, there are several rules that must be followed in order for everything to be done legally. First, a process cannot generally be mailed to the defendant; the process must be given to the defendant directly, or left with someone who lives or works with them.
Service of process can typically be carried out by any adult, meaning any person over the age of eighteen, who is not otherwise involved in the lawsuit. Previously, the process server was a member of the court or a law enforcement agent. Licensed private investigators also work as process servers, so an attorney will probably have recommendations if you need to serve someone.
It is not uncommon for a plaintiff to hire a professional process server. A civil process server is responsible for hand-delivering legal documents, such as a process, to the defendant on behalf of the plaintiff. It is important to note that a civil process server’s job is considered to be complete, even if the defendant does not accept the physical process being served to them.
In such cases, the server would only need to describe the contents of the documents, and leave the papers with the person being served. Once the server has delivered or attempted to deliver the documents, they record the date, time, and location in which the papers were served.
What If I Have Been Served Process Through Unusual Means?
Laws regarding exactly how far a process server can go in order to serve someone will vary by state. An example of this would be how in California, you can serve anyone at any time of day or night, and at any place. Virginia, however, does not allow someone to be served at their residence on Sundays, or when they are en route to court.
Another example would be how in New York, some jurisdictions have clarified that the complaint must actually touch the body of the person being served, in order to be considered effective.
Generally speaking, it is directly up to a particular judge’s discretion on what constitutes valid service. Some examples of universal rules may include, but not be limited to:
- No Disguises: In many states, it is illegal for a process server to disguise themselves as someone else in order to serve a process. An example of this would be wearing a food delivery uniform. However, implied disguises are generally allowed, such as holding a food box while serving the process, but not wearing a delivery uniform. To continue this example, it would be acceptable for process services to order food for you, and then simply stand behind the actual food delivery person;
- No Federal Impersonations: It is a crime to impersonate a police officer, federal agent, tax collector, or any other kind of state employee. This is true, even for the purpose of process serving. Additionally, you cannot impersonate utility company employees. What this means is that a process server could not impersonate someone such as a water meter reader; and
- No Trespassing: A process server cannot trespass on property in order to serve the process. This includes going through a back gate. Serving by such means is not only ineffective in court, but it is also illegal. However, it is important to note that most gated communities and apartment buildings have provisions that must allow process servers to enter.
To reiterate, each state has its own laws regarding what constitutes legal process serving. You should contact an attorney in order to determine if you have been unlawfully served. A common example of this would be if the process is served to your spouse instead of you. While most states allow this type of service, as previously discussed, many states require such service to be a last or secondary resort. As such, if the server did not ask if you are home before giving the documents to your spouse, this may be considered invalid service.
It is not illegal to avoid being served, or refuse to accept service of process; however, there are legal consequences for doing so. Court decisions may be issued without you being present, and the process server could still reach you through other means.
An example of this would be by posting a public notice in a local publication, such as your town’s newspaper. Doing so would most likely be embarrassing, as many people do not want their private legal matters being published as public knowledge.
What Is a Process Server Allowed to Do? What Else Should I Know About Service of Process?
There are some limitations of process service. An example of this would be how many times a process server can come to your home. Generally speaking, process servers are allowed to make up to three attempts.
How long a process server has in which to serve varies greatly, depending on the type of legal action, among other factors. Process servers may have anywhere from hours to months to complete service.
If a process server cannot serve you, the court will simply continue without you. You will not be able to provide a defense for yourself, and a judgement will be issued. Avoiding being served will not make the legal action go away; rather, it will limit your options, and work against you.
Process server harassment can refer to either the process server being harassed by the person they are serving, or the person being served is harassed by the process server. The same applies to process server assault. Process servers may not harass those being serviced by utilizing the following methods:
- Intentionally annoying the person being served, such as excessively knocking on their door;
- Block driveways or vehicles, so the person being served cannot leave the premises;
- Possessing a firearm at the time of service;
- Attempting service during abnormal hours, major holidays such as Thanksgiving and Christmas, and at a place of worship; and
- Serve a person who is clearly suffering from a permanent hardship, or lives in a nursing or convalescent facility.
How Can a Lawyer Help with Service of Process Issues?
As can be seen, service of process is often a difficult matter for all parties involved. Additionally, failure to execute proper service of process can result in your lawsuit being dismissed.
As such, it is important to consult with a local and experienced attorney in your area that specializes in the subject of law related to your particular suit. For example, if you are trying to perfect the service of process in a custody matter, you will want to consult with an experienced family law attorney.
