From Wikipedia, the free encyclopedia Service of process
Service of process
Civil procedure in the United States • Voir dire
• Federal Rules of Civil Procedure • Burden of proof
• Doctrines of civil procedure • Judgment
• Jurisdiction • Judgment as a matter of law (JMOL)
• Subject-matter jurisdiction • Renewed JMOL (JNOV)
• Diversity jurisdiction • Motion to set aside judgment
• Personal jurisdiction • New trial
• Removal jurisdiction • Remedy
• Venue • Injunction
• Change of venue • Damages
• Forum non conveniens • Attorney’s fees
• Pleadings • American rule
• Service of process • English rule
• Complaint • Declaratory judgment
• Cause of action • Appeal
• Case Information Statement • Mandamus
• Class action • Certiorari
• Class Action Fairness Act of 2005
• Demurrer Service of process is the procedure employed to give le-
• Answer gal notice to a person (such as a defendant) of a court
• Affirmative defense or administrative body’s exercise of its jurisdiction over
• Reply that person so as to enable that person to respond to the
• Counterclaim proceeding before the court, body or other tribunal. Usu-
• Crossclaim ally, notice is furnished by delivering a set of court docu-
• Joinder ments (called "process") to the person to be served.
• Indispensable party
• Impleader
• Interpleader Service
• Intervention Each jurisdiction has rules regarding the means of ser-
• Other Motions vice of process. Typically, a summons and related docu-
• Pre-trial procedure ments must be served upon the defendant personally, or
• Discovery in some cases upon another person of suitable age and
• Initial Conference discretion at the person’s residence or place of business
• Interrogatories or employment. In some cases, service of process may be
• Depositions effected through the mail as in some small claims court
• Request for Admissions procedures. In exceptional cases, other forms of service
• Request for production may be authorized by procedural rules or court order, in-
• Resolution without trial cluding service by publication when an individual cannot
• Default judgment be located in a particular jurisdiction.
• Summary judgment Proper service of process initially establishes person-
• Voluntary dismissal al jurisdiction of the court over the person served. If the
• Involuntary dismissal defendant ignores further pleadings or fails to partici-
• Settlement pate in the proceedings, then the court or administrative
• Trial body may find the defendant in default and award relief
• Parties to the claimant, petitioner or plaintiff. Service of process
• Plaintiff must be distinguished from service of subsequent doc-
• Defendant uments (such as pleadings and motion papers) between
• Pro Se the parties to litigation.
• Jury
1
From Wikipedia, the free encyclopedia Service of process
Service of process in cases filed in the United States Common law systems
district courts is governed by Rule 4 of the Federal Rules
In most common law systems, the service of process is ef-
of Civil Procedure. In England and Wales, the rules gov-
fectuated by a registered process server who must be an
erning service of documents are contained within Part 6
adult and (in most jurisdictions) not a party to the litiga-
of the Civil Procedure Rules 1998.[1]
tion.
Service on a defendant who resides in a country out-
Most jurisdictions require or permit process to be
side the jurisdiction of the Court must comply with spe-
served by a court official, such as a sheriff, marshal, con-
cial procedures prescribed under the Hague Service Con-
stable or bailiff. There may be licensing requirements for
vention, if the recipient’s country is a signatory. Service
private process servers, as is the case in New York Ci-
on defendants in many South American countries and
ty, Alaska, Arizona, California, Illinois, Montana, Nevada,
some other countries is effected through the letter roga-
and Oklahoma. Texas process servers are currently cer-
tory process. Where a defendant’s whereabouts are un-
tified by order of the Supreme Court and are regulated
known, the Court may permit service by publication, usu-
through the Process Server Review Board, consisting of
ally in a newspaper.
members of the industry authorized by the Supreme
In the past in many countries, people did not have the
Court.
right to know that there were legal proceedings against
Other jurisdictions, such as Georgia, require a court
them. In some cases, they would only find out when mag-
order allowing a private person to serve process. Many
istrates showed up with the sheriff and seized their prop-
private investigators perform process serving duties.
erty, sometimes throwing them into debtor’s prison until
Texas and Florida also have a required training course
their debts were paid. The Fifth and Fourteenth Amend-
which must be completed prior to certification.
ments to the United States Constitution prohibit the fed-
An example of such a license would be in Rhode Is-
eral and state governments from depriving any person
land, where an applicant must complete 90 days of train-
of life, liberty or property without due process of law.
ing with a constable that has ’full powers’. Once the 90
Therefore the process server is "serving" the recipient
days of training is complete, a test is given at the local
with notice of their constitutional right to due process of
courthouse from the laws included in the constable man-
the law.
ual. Once an applicant passed the written exam, one will
In ancient times, the service of a summons was con-
be scheduled for an oral interview with the disciplinary
sidered a royal act that had serious consequences. It was
board. If they find the applicant to be competent, they
a summons to come to the King’s Court and to respond
will pass a recommendation to the chief judge who will
to the demand of a loyal subject. In ancient Persia, failure
then swear in one with ’limited power’. These constables
to respond to the King’s summons meant a sentence of
can only serve within the county they are appointed.
death. Today the penalty for ignoring a summons may be
After one year, a limited power constable can apply for
entry of a default money judgment that can subsequently
his/her full powers to arrest, evict, and be able to serve
be enforced.
state wide.
In New York, personal process is required in divorce
Manner of service and similar matrimonial law actions, absent court per-
mission.[2] Specific practice is that: {{quote|The defen-
Personal service by process server dant must be personally served with the divorce papers,
Personal service is service of process directly to the (or unless the court grants some other means of service.
a) party named on the summons, complaint or petition. Note that there are special requirements for service of
In most lawsuits in the United States, personal service is process in a divorce action. See CPLR 308 and DRL 232.
required to prove service. Most states allow substituted
service in almost all lawsuits unless you are serving a
Civil law systems
corporation, LLC, LLP, or other business entity; in those In some places such as France, the Netherlands, Ger-
cases, personal service must be achieved by serving (in many, Japan, China, the province of Quebec, and the state
hand) the documents to the "Registered Agent" of a busi- of Louisiana which follow the continental legal system,
ness entity. Some states (Florida) do not require that the service of process is performed by a huissier de justice
documents actually be handed to the individual. In Cali- (gerechtsdeurwaarder in Dutch), either in person or
fornia and most other states, the documents must be vis- through the mail. In some of these places there are two
ible to the person being served, i.e., not in a sealed en- different types of service - signification and notification.
velope. If the individual refuses to accept service, flees, The huissier is only responsible for signification, the
closes the door, etc., and the individual has been positive- more formal type of service.
ly identified as the person to be served, documents may
be "drop" served, and it is considered a valid service.
2
From Wikipedia, the free encyclopedia Service of process
Substituted service service.
service, also called waiver of service It means that the
served party agrees to voluntarily acknowledge receipt
When an individual party to be served is unavailable for
of the complaint or petition without the need to engage
personal service, many jurisdictions allow for substituted
a process server. However, when serving documents, the
service.
service Substituted service allows the process server to
most effective route is to hire a private process server.
leave service documents with another responsible indi-
Acceptance or waiver of service is encouraged by
vidual, called a person of suitable age and discretion,
some court systems, especially U.S. federal courts. Under
such as a cohabiting adult or a teenager. Under the Fed-
Federal Rule of Civil Procedure 4(d)(2), when a defendant
eral Rules, substituted service may only be made at the
refuses to waive service "without good cause", the defen-
abode or dwelling of the defendant.[3] California, New
dant can be held liable for the cost of personal service.
York,[4] Illinois, and many other United States jurisdic-
However, in general, individual service by a process
tions require that in addition to substituted service, the
server is the best way to effect service of process, as it
documents be mailed to the recipient.[4] Substituted ser-
completely avoids having to litigate the collateral issue of
vice often requires a serving party show that ordinary
whether the defendant actually had good cause (or not)
service is impracticable, that due diligence has been
to not waive service.
made to attempt to make personal service by delivery,
and that substituted service will reach the party and ef-
fect notice.[4]
International service
Another method of substituted service is "service by Main article: Hague Service Convention
publication". According to law.com [1]"Service by publi- International service of foreign judicial and extrajudicial
cation is used to give "constructive notice" to a defen- documents is governed in general by the 1965 Hague Ser-
dant who is intentionally absent, in hiding, unknown (as vice Convention. Prior to the enactment of the Hague
a possible descendant of a former landowner), and only Service Convention, service of process in civil cases was
when allowed by a judge’s order based on a sworn dec- generally effected by a letter rogatory, a formal request
laration of the inability to find the defendant after "due from the court in the country where proceedings were
diligence" (trying hard). Service by publication is com- initiated or underway to a court in another country
monly used in a divorce action to serve a spouse who has where the defendant resided. This procedure generally
disappeared without leaving a forwarding address..." Ser- required the use of consular and diplomatic channels as
vice by publication usually involves placing the petition the request had to be made to the foreign minister (Sec-
for divorce and the summons to a missing spouse in a lo- retary of State in the United States) of the defendant’s
cal newspaper. country by the foreign minister of the originating court.
In divorce cases most states that permit service by Since 1965, member states designate a central au-
publication will require "due diligence" to locate the thority for service of process and requests go directly
missing spouse to include: verifing with the Post Office to there. In addition, many states allow some type of service
that there is no forwarding address; contacting in writing directly by mail or personal service by a person other-
all friends, relatives, and former employers of a spouse wise authorized to service process without involvement
who may know his/her current address; checking all jails of local courts.
and prisons for any record of a spouse; [2] and checking
military records for a spouse[3]. Agent for acceptance of service
In addition, in some jursidictions, substituted service
may be affected through motion and public notice, fol- In some instances, delivery to an agent for acceptance of
lowed by sending the documents by Certified Mail.[5] service or "Registered Agent" can substitute for person-
al service on the principal party to be served. The Regis-
Service by mail tered Agent is a person or company authorized in ad-
vance to accept service on behalf of the served party. For
Service by mail is permitted by most U.S. jurisdictions
example, most corporations are required by local law to
for service on defendants located in other U.S. states or
have an agent for acceptance of service in each jurisdic-
foreign countries. Service by mail is not available if the
tion where they are active. The identity of the agent for
country of destination has filed objections to service by
service can usually be ascertained from company filings
mail pursuant to the multinational Hague Service Con-
with appropriate state agencies.
vention.
Voluntary acceptance of service (United Return of service
States) Once service of process has been effected, the responsible
As a substitute for personal service by a process server, officer or process server must typically file a return of
some jurisdictions may allow voluntary acceptance of service or proof of service or "Affidavit of Service" with
3
From Wikipedia, the free encyclopedia Service of process
the court (or convey one to the plaintiff to file with the to be considered the only legitimate process server for
court). The return of service indicates the time and place such a cause. [7] This Wisconsin example is in the ma-
at which service was effected, the person served, and any jority for all states in the US regarding out of state ser-
additional information needed to establish that service vice in their jurisdiction. Be forewarned there are a small
was properly made. It is signed by the process server, and number of states, such as Arizona, [8] Arizona Court Rules
operates as prima facie evidence that service of process Rule "4.2(b). Direct Service Service of process may be
was effectively made. made outside the state but within the United States in the
same manner provided in Rule 4.1(d)-(l) of these Rules
Process serving laws (United by a person authorized to serve process under the law of
the state where such service is made. This Arizona rule
States) acknowledges other states to determine an authorized
process server of their service of process." This Arizona
Many states have process serving laws that govern the
rule is an exception to the majority of other states that
way service of process is effected, the licensing require-
require a process server to be 18 and over, and an unin-
ments to effect service, the forms to be used and the time
volved party to serve its process in Florida. Arizona law
deadlines that service of process may be accomplished
has never been challenged on the sovereignty grounds as
upon individual respondents and corporations. For ex-
Arizona appears to give it legislative and judicial author-
ample, in New York service of process may require li-
ity for its people to a foreign state government.
censing of the process server. Generally, there are spe-
cific procedures and rules for most courts, from local
Trespassing
small claims courts to United States District courts. Each
court has specific rules, forms, guidelines and procedures In nearly every state of the United States, process servers
which must be followed in order to successfully effect are restricted from trespassing on property as a means of
service of process. Failure to follow these guidelines may serving process. Such invasions, no matter how innocu-
deem the attempted service improper. Indeed many de- ous, are regarded as not only invalid, but illegal and may
fendants in court hearings use the affirmative defense of result in penalties for offenders. Gated communities and
"I was not served" as an often successful line of defense apartment buildings have created a difficulty for process
in any lawsuit. Not surprisingly, this defense tends to be servers, however, most are required to allow process
effective in many cases because service of process upon servers to enter them.
defendant did not follow legal procedure. As for United In California, "Registered Process Servers" are grant-
States federal courts, service of process rules are in the ed "...a limited exemption against trespassing." This al-
Federal Rules of Civil Procedure, upon which most state lows servers to enter a private property for a reasonable
service of process laws are based. period of time to attempt service of process. Similarly,
in California, gated communities which are "...staffed by
Jurisdiction a security guard, or where access is controlled, must al-
low a Registered Process Server to enter for service of
It is universal that the laws of service of process must
process upon presenting valid identification, and indicat-
follow the laws that apply to the court that issues the
ing to which address the process server is going." This
process. A bias or confusion occurs in many jurisdictions
does not prevent the security guard from contacting the
where service is made. In Florida process servers seem to
resident and alerting them that a process server is on his
suggest Florida laws apply to all service of process made
way to their residence.
within the territory of Florida. [6] In this reference text
In Washington, "Registered Process Servers" are
48.195 implies an authority of Florida process servers to
granted a limited exemption or affirmative defense
serve foreign process. This was added to allow sheriff to
against trespassing:
serve foreign process within limitations as the section
provides. But it does not, and cannot give exclusivity The actor was attempting to serve legal
to state sanctioned licensed approved process servers to process which includes any document re-
foreign process. This interpretation however prevalent quired or allowed to be served upon persons
and beneficial to Florida process servers is false. or property, by any statute, rule, ordinance,
Florida governs only those process that are issued regulation, or court order, excluding delivery
from Florida courts. An example would be a Wisconsin by the mails of the United States. This defense
court process to be served upon a person in Florida. Wis- applies only if the actor did not enter into a
consin statutes dictate the service requirements to the private residence or other building not open
Florida participant. Simply, a person must be uninterest- to the public and the entry onto the premises
ed, a resident of Florida and over the age of 18. This is was reasonable and necessary for service of
not a popular position as many process servers who have the legal process.
a local Florida license prefer, for reasons of economics,
4
From Wikipedia, the free encyclopedia Service of process
—RCW 9A.52.090 (4) Under the new legislation, process servers must pass
an exam showing they understand the law. They also
Deadlines must electronically log their attempts to serve papers us-
Most states have a deadline for completing service of ing some kind of GPS device, and keep those records in a
process after filing of the summons and complaint. In database for seven years
New York, for example, service must be completed in
120 days after filing for almost all cases,[9] and Hawaii See also
State Circuit Court rule 28 requires service in a civil law-
• Federal Rules of Civil Procedure
suit must be effected within 6 months from commencing
• Civil procedure
suit.[10]
• BOC-3
Dies non juridicum
Some states prohibit the delivery or serving of docu- References
ments on Sundays, holidays, and/or election days (dies [1] PART 06 - SERVICE OF DOCUMENTS
non juridicum). However, some states will allow the ser- [2] For N.Y. Civil Practice Law and Rules (CPLR) § 308
vice of documents under special circumstances. One such and Domestic Relations Law (DRL) § 232, see NY
circumstance is when the service of process is pursuant Assembly website. Retrieved September 24, 2008.
to a court order. [3] FRCP 4.
According to various laws[citation needed], service of [4] ^ N.Y. CPLR § 308 (2), (3), (4). Found at New York
process cannot be performed on Sundays in Florida (un- State Assemblly website, under CVP article 3.
less with a court order), Maine, Massachusetts, New York, [5] N.Y. CPLR § 308 (5).
Rhode Island, South Dakota, Tennessee (unless with a [6] http://www.leg.state.fl.us/Statutes/
court order), Texas, Virginia, or West Virginia. It can also index.cfm?App_mode=Display_Statute&URL=0000-0099/
not be performed on election days or at a place of re- 0048/0048.html
ligious service on Sunday in Michigan, or on holidays [7] http://docs.legis.wi.gov/statutes/statutes/801/
in Minnesota. Finally, in New York, process cannot be 10/1
served on Saturday upon a person who keeps Saturday as [8] http://government.westlaw.com/linkedslice/
holy time. default.asp?SP=AZR-1000
[9] NY CPLR § 306-b, found at NY Assembly website.
GPS Certification Retrieved September 24, 2008. (The exception is in
New York’s City Council passed a bill toughening rules for election law, which is 15 days.)
entities that hunt down people and serve them with legal [10] Hawaii Circuit Court Rule 28, found at
papers, including a requirement that they electronically
log every attempt.
The legislation also ensures that deceitful process
External links
servers who dump papers instead of serving them — a • Complete text of Federal Rules of Civil Procedure
trick known as “Sewer Service" could be liable if the peo- (Cornell Univ.)
ple they were supposed to serve then turn and sue them. • The National Association of Professional Process
Servers
Retrieved from "http://en.wikipedia.org/w/index.php?title=Service_of_process&oldid=468106016"
Categories:
• Civil procedure
• Legal professions
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