Cameron Miranda
Serving a lawsuit is the process of ensuring the other party is aware of the legal action against them. This is typically done by delivering a copy of the filed papers to the defendant, either by mailing the papers or hand-delivering them in person. While service is straightforward if the other party willingly accepts it, they may attempt to avoid being served by not answering the door or refusing to acknowledge the server. In such cases, the server can get creative and serve the papers at the defendant's workplace during business hours, or any other location they visit regularly, such as school or church. This is known as substitute service, and it requires leaving the papers with a competent member of staff who is informed of the nature of the documents. Therefore, it is possible to be served with a lawsuit at work, which can be an embarrassing and stressful experience for the recipient.
| Characteristics | Values |
|---|---|
| Who can serve the papers? | Anyone other than the person attached to the case. The plaintiff or their attorney cannot serve the papers themselves. |
| Where can the papers be served? | At the person's home, work, school, church, or any other location the person may visit regularly. |
| What are the requirements for substitute service? | Leave the documents with someone of a suitable age and discretion who lives with the defendant at their "usual abode". |
| What papers need to be served? | A copy of the summons and complaint, both signed by the plaintiff or their attorney, along with the case schedule. |
| How can the papers be served? | By hand, by mail, or "nail and mail" (tacking a copy to the door and mailing another copy). |
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What You'll Learn
- Substituted service: leaving papers with someone of a suitable age and discretion at the defendant's home
- Service by mail: sending papers by certified mail with a return receipt requested
- Personal service: hand-delivering papers directly to the defendant
- Service by substitution: leaving papers at the defendant's workplace during business hours with their supervisor
- Service of process: the person serving papers cannot be attached to the case
Substituted service: leaving papers with someone of a suitable age and discretion at the defendant's home
Substituted service is a recognised method of serving legal papers that begin a case. Substituted service can be used when personal delivery is attempted but the defendant is not present. The papers can be left with someone of a suitable age and discretion who lives with the defendant at their home or 'usual abode'. This means that the person answering the door should be responsible and likely to give the papers to the defendant. The person does not have to be an adult, but they should not be a small child. For example, a responsible teenage babysitter may be deemed acceptable, whereas someone who appears drunk or mentally impaired would not.
In California, an intelligent and mature 16-year-old is considered to be of suitable age and discretion. This form of process is also recognised in Arizona, Louisiana, Michigan, Minnesota, New York, and North Carolina. The Federal Rules of Civil Procedure, Rule 4(e)(2)(B), allows "delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein".
In some cases, a judge may allow substituted service if multiple attempts have been made to deliver the papers. The server must then leave the papers with someone at least 18 years old who lives at the house and appears responsible. They must inform the recipient that the papers are legal documents and state who they are intended for. The server must record the recipient's name, or, if the recipient refuses to give their name, provide a detailed physical description.
It is important to note that the plaintiff is responsible for providing the defendant with a copy of the summons and complaint, both of which must be signed, as well as the case schedule.
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Service by mail: sending papers by certified mail with a return receipt requested
When you file a lawsuit, you must ensure the other party is aware of it. Service by mail is one way to notify them. This method involves sending the legal papers by certified mail with a return receipt requested. Here are some key points to consider:
Firstly, understand that certified mail provides proof of mailing and delivery. Standard certified mail includes a Proof of Mailing receipt and online confirmation of delivery. However, to obtain a signature from the recipient, you must request a Return Receipt as an additional service. This Return Receipt ensures that the postal service obtains a signature upon delivery.
When sending papers by certified mail with a return receipt requested, there are specific procedures to follow. You can prepare and print the documents from your computer using plain paper and certified mail envelopes provided by the postal service. This method eliminates manual errors and the need for post office trips. You will need to include a copy of the summons and the complaint, both of which must be signed by you or your attorney. As the plaintiff, you are also responsible for providing the case schedule to the defendant.
It is important to note that serving a lawsuit at the defendant's workplace is allowed. If the other party is cooperative, they will accept the service without issues. However, some individuals may attempt to avoid being served by not answering the door or refusing to accept the papers. In such cases, you can serve them at any location they visit regularly, including their workplace, school, or church.
Using certified mail with a return receipt provides advantages and disadvantages. On the one hand, it simplifies the process and reduces costs compared to using a process server. On the other hand, there are potential drawbacks with the Return Receipt by mail. You will need to wait for the physical receipt (Green Card) to be returned by mail to see the signature. These cards can get lost in the mail or be challenging to store and retrieve for future reference. To mitigate this, senders can opt for an electronic version of the Return Receipt, which provides the same information in a PDF format, and any printout of the PDF is legally acceptable.
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Personal service: hand-delivering papers directly to the defendant
Personal service is the most straightforward way to serve papers. It involves physically delivering the legal papers to the defendant. This can be done anywhere the defendant may be found, including their home, workplace, school, church, or any other location they visit regularly. The papers can be handed to the defendant directly or left in their vicinity if they refuse to accept them. However, it is important to note that papers cannot be served on Sundays or on a person's religious observance days.
It is crucial to hire a third party, such as a process server, to deliver the papers, as the plaintiff cannot serve the papers themselves. The process server should be careful to serve the correct person, especially if they do not personally know the defendant. A photo of the defendant, as well as information on their routine, can be helpful for the process server.
In some states, personal service can also be carried out by law officers such as sheriffs, marshals, or constables. However, not all officers will serve civil subpoenas, and there may be associated costs that can be added to the judgment if the plaintiff wins the case.
It is important to note that personal service may not always be possible, and other methods such as substituted service or service by mail may need to be considered. Substituted service involves leaving the papers with someone else who lives or works with the defendant, while service by mail involves sending the papers through the mail to the defendant's address. Regardless of the method used, proof of service must be provided to the court through an Affidavit of Service.
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Service by substitution: leaving papers at the defendant's workplace during business hours with their supervisor
Service by substitution is a valid method of serving a lawsuit to a defendant. This method can be used if the defendant is dodging service or is difficult to reach. Substituted service typically works by serving the papers to the defendant's dwelling place or workplace.
If serving the papers at the defendant's workplace, the papers must be left with a competent member of the organisation, such as a supervisor, who is at least 18 years old and who appears to be in charge. The person receiving the papers must be informed that they are legal documents and who they are intended for. The name of the person accepting the papers must be recorded, and if they refuse to give their name, a detailed physical description should be noted.
On the same day, a copy of the papers must be mailed to the defendant by first-class mail. Service is considered complete ten days after mailing. The person serving the papers must be an adult who is not named in the lawsuit and is not involved in the case. They should record each attempt to serve the papers, including the dates and times, and the outcome of each attempt. This record is known as a Declaration of Due Diligence or a Declaration of Nonmilitary Service, and must be signed under penalty of perjury.
It is important to note that the rules for substituted service may vary depending on the state and specific court procedures. Therefore, it is recommended to consult with an attorney or legal professional to ensure compliance with the applicable rules and regulations.
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Service of process: the person serving papers cannot be attached to the case
When serving a lawsuit, the person delivering the papers, or the process server, is required to be a third party with no attachment to the case. This means that the plaintiff cannot serve the papers themselves, nor can their attorney. This is to avoid any conflict of interest and the risk of the attorney being called as a witness, which would disqualify them from counsel.
The process server can be a sheriff, marshal, constable, or private process server, and their role is to hand the relevant papers to the defendant. This can be done at the defendant's home, place of work, or any other location they are known to visit regularly. If the defendant cannot be located, substituted service can be requested, where the papers are left with someone of suitable age and discretion who resides with the defendant, or, in some states, the papers can be tacked to the defendant's door and a copy mailed.
It is important to note that the defendant does not have to physically take the papers; the process server should not use force. If the defendant refuses to accept the papers, the server can simply put them down and leave, and valid service is still considered to have been accomplished.
The process server must keep a record of their attempts to serve the papers, including dates, times, and any issues encountered, and sign this under penalty of perjury. This is called a "declaration of due diligence," and it is attached to the proof of service form and filed in court.
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Frequently asked questions
Yes, you can be served a lawsuit at work. While service is easy if the other party is willing to accept service, they may attempt to dodge it by not answering the door or refusing to respond. In such cases, you can serve the papers at their workplace during business hours to the person in charge, who must be informed of what the papers are about.
The person delivering the lawsuit is called a "server". The server cannot be someone who is attached to the case, and it cannot be you or your attorney.
At a minimum, you need to serve a copy of the summons and the complaint, signed by you or your attorney. You are also responsible for providing the case schedule to the defendant.
There are several ways to serve a lawsuit, including personal service, service by substitution, and certified mail. Service by substitution can be done by leaving the documents with someone of suitable age and discretion who lives with the defendant at their usual abode.
