About Process Service
Service of process is the procedure employed to give legal notice to a person
(defendant etc.) of a court or administrative
body's exercise of its jurisdiction
over that person so as to enable that person to respond to the proceeding before
the court, body or other tribunal. Usually, notice is furnished by delivering a
set of court documents to the person to be served.
Service
Each jurisdiction has rules regarding the means of service of process. Typically,
a summons and related documents must
be served upon the defendant personally, or in some cases upon another person of
suitable age and discretion at the person's abode or place of business or employment.
In some cases, service of process may be effected through the mail as in some small claims court
procedures. In exceptional cases, other forms of service may be authorized by procedural
rules or court order, including service by publication when an individual cannot
be located in a particular jurisdiction.
Proper service of process initially establishes personal jurisdiction of the court over the
person served. If the defendant ignores further pleadings or fails to participate
in the proceedings, then the court or administrative body may find the defendant
in default and award
relief to the claimant, petitioner or plaintiff. Service of process must be distinguished
from service of subsequent documents (such as pleadings and motion papers) between the parties to litigation.
In past times in many countries, people didn't have the right to know that there
were legal proceedings against them, and in some cases would only find out when
magistrates showed up with the sheriff and seized their property, sometimes throwing
them into debtor's prisons until their debts were paid. When the United States was
founded, the Constitution said that everyone is entitled to due process of law,
therefore the process server is "serving" the servee with their constitutional right
to due process of the law.
In ancient times the service of a summons
was considered a royal act that had serious consequences. It was a summons to come
to the King's Court and to respond to
the demand of a loyal subject. In ancient
Persia, failure to respond to the King's summons meant a sentence of death.
Today the penalty for ignoring a summons is usually a default money judgment that
must be subsequently enforced.
Service of process in cases filed in the United States district courts is governed
by Rule 4 of the
Federal Rules of Civil Procedure. In
England and Wales, the rules governing service of documents are contained
within Part 6 of the
Civil Procedure Rules 1998 [1].
Service on a defendant who resides in a country outside the jurisdiction of the
Court must comply with special procedures prescribed under the Hague Service Convention, if the recipient's
country is a signatory. Service on defendants in many South American countries and some other countries
is effected through the Letter
Rogatory process. Where a defendant's whereabouts are unknown, the Court
may permit service by publication, usually in a newspaper.
Manner
of Service
Personal Service by Process Server
Personal service is service of process directly to the (or a) party named on the
summons, complaint or petition. In most lawsuits,
personal service is required to prove service. In most Anglo-American legal systems the service of process is
effectuated by a process server who must be an adult and (in most jurisdictions)
not a party to the
litigation.
Some jurisdictions require or permit process to be served by a court official, such
as a sheriff, marshal, constable
or bailiff. There may be licensing requirements
for private process servers, as in New York City. Other jurisdictions, such as Georgia,
require a court order allowing a private person to serve process. Many private investigators
perform process serving as part of their duties.
In non-English speaking countries such as France,
the Netherlands, Germany, Japan and
China which follow the continental legal
system, service of process is performed by a huissier de justice (gerechtsdeurwaarder in
Dutch), either in person
or through the mail. In some of these countries there are two different types of
service — signification and notification. The huissier is only responsible
for signification, the more formal type of service
1.
Substituted Service
When an individual party to be served is unavailable for personal service, many
jurisdictions allow for substituted service. Substituted service allows the
process server to leave service documents with another responsible individual such
as cohabiting adults. Under the Federal Rules, substitute service may only be made
at the abode or dwelling place of the defendant. Fed. R. Civ. P. 4. California,
Illinois, and many other U.S. jurisdictions require that in addition to substitute
service the documents be mailed to the recipient. Substituted service often requires
a serving party show that ordinary service is impracticable and that substituted
service will reach the party and effect notice.
In addition, substituted service may be effected through public notice followed
by sending the documents by Certified
Mail.
Service
by Mail
Service by mail is permitted by most U.S. jurisdictions for service on defendants
located in other U.S. states or foreign countries. Service by mail is not available
if the country of destination has filed objections to service by mail pursuant to
the multinational
Hague Service Convention.
Voluntary Acceptance of Service (United States)
As a substitute for personal service by a process server, many jurisdictions encourage
voluntary acceptance of service. The summons and other documents are mailed to the
party to be served, along with a request to sign and return a form of acceptance
of service, or acknowledgement of service.
Acceptance of service means that the served party agrees to acknowledge receipt
of the complaint or petition without the need to engage a process server. Failure
to accept service voluntarily means that the party to be served will be liable for
the cost of effecting formal service, even if the plaintiff's action is otherwise
unsuccessful. In U.S. federal court, voluntary acceptance of service entitles the
defendant to more time to file an answer.
Agent for acceptance of service
In some instances, delivery to an agent for acceptance of service or "Registered Agent"
can substitute for personal service on the principal party to be served.
The agent for acceptance of service or "Registered Agent" is a person or company authorized
in advance to accept service on behalf of the served party. For example, most corporations are required by
law to have an agent for acceptance of service in each jurisdiction where they are
active. The identity of the agent for service can usually be ascertained from company
filings with appropriate state agencies.
Animosity towards process servers
The wily, overzealous process server has since become the subject of modern American
legend, depicted in films and television as a cunning master of deception[2][3][4]. Such
recreant illustrations have contributed significantly to the public resentment towards
process servers. In the interest of assuaging this animus between the public and
process servers, legislatures have invalidated, and occasionally invoked criminal
penalties for, certain unscrupulous methods of process serving.
Process serving laws
Each state has process serving laws, or Rules of Civil Procedure, that govern
civil procedure in their
courts, or more simply,
court procedures for civil suits in their state. The United States also has their
own set of
Federal Rules of Civil Procedure, on which most state service of process
laws are based.
Trespassing
In nearly every state, process servers are restricted from trespassing on property
as a means of serving process. Such invasions, no matter how innocuous, are regarded
as not only invalid, but illegal and may result in penalties for offenders. Gated communities
and apartment buildings have created a curious predicament for process servers,
however, most are required to allow process servers to enter them.
Protected
Days
Some states prohibit the delivery or serving of documents on Sundays, Holidays,
and / or Election Days. However, some states will allow the service of documents
under special circumstances. One such circumstance is when the service of process
is pursuant to a court order.
According to various laws, service of process cannot be performed on Sundays in
Florida, Maine, Massachusetts, Michigan, New York, Rhode Island, South Dakota, Tennessee
(unless with a court order), Texas, Virginia, or West Virginia. It can also not
be performed on election days in Michigan, or on holidays in Minnesota. Finally,
in New York, process cannot be served on Saturday upon a person who keeps Saturday
as holy time.
References
- ^ PART
06 - SERVICE OF DOCUMENTS
- ^
Serving Sara at the
Internet Movie Database
- ^
He Couldn't Take It at the
Internet Movie Database
- ^
Bacon Grabbers at the
Internet Movie Database
External
links
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