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Process Serving

Service of process is usually something of a procedural formality in a lawsuit or other legal proceeding, but if legal documents aren't served properly, it could spell trouble for your case.

While the term might sound complicated, “service of process” just gives a person notice that some kind of legal action has been initiated against them. Service of process is accomplished through the delivery of legal documents -- such as a subpoena or a civil complaint -- to the named individual.

Every jurisdiction has its own rules for how a party or witness must be served, but once service is done in compliance with those rules, the court is usually said to have personal jurisdiction over the person served. Service of process is typically only required for the initial summons, complaint, or subpoena in a legal proceeding, and when all of the parties have legally compliant notice of the action, future legal documents in the action can be served by mail. Let’s take a closer look at how service of process works.

Serving the Defendant or Registered Agent

The person against whom a lawsuit has been filed is known as the “defendant.” (Learn more about Parties in a Lawsuit.) Typically, the defendant is personally served, which means that the legal documents (usually the complaint and summons) are delivered directly to him or her. If the defendant has a “registered agent,” he or she may also be served with the legal documents, in place of personal service in the defendant. A registered agent is a person or other entity authorized to receive service of process on someone else’s behalf. The laws in most jurisdictions require all corporations to designate a registered agent, and that agent’s identity is typically considered public information.

Service by Publication

If a defendant cannot be found after reasonable efforts, some jurisdictions allow service by publication, which typically involves printing a legal notice in the local newspaper or elsewhere for a specified number of days. You usually need to get the court’s permission to serve a defendant by publication, and that includes giving the judge a detailed summary of your efforts to locate the defendant. For example, check out the California Court Rules on Service by Publication or Posting in Family Law Cases.

Substituted Service

In many jurisdictions, service of process may also be accomplished through substituted service if the party to be served is unavailable. With substituted service, the legal documents may be left with a third party, such as a spouse or employer, or someone else who is over 18 and is able to accept service. Substituted service usually cannot be utilized unless it is shown that regular service of process will cause hardship or is impracticable, and that the substituted service will actually reach the intended recipient. In many states, like New York, substituted service requires two steps:

  • delivering the papers to a person who is over 18 and is willing to accept service, at the defendant's home address or place of business, and
  • mailing the papers to the defendant at his or her last known residence or actual place of business.

Learn more about substituted service and related issues in New York, from NYCourts.gov: How to Serve Legal Papers.

Process Servers

The actual delivery of the legal documents is usually done by a non-interested process server, who is not a party to the litigation. Some jurisdictions have certain licensing or certification requirements for private process servers. Process servers can also be court or government officials, such as a sheriff, deputy, constable, or marshal.

“Return of service” is a written acknowledgment by the process server that the legal documents have been served.

The "Acceptance of Service" Option

As a cost- and time-saving alternative to personal service, most jurisdictions encourage some form of voluntary acceptance of service, where the defendant (or the defendant’s attorney) agrees to accept delivery of legal documents without having a process server personally deliver them.

The agreement to accept service must be in writing, and in most jurisdictions a form stating "receipt and acknowledgment of acceptance of service" or similar language is utilized. (See Pennsylvania Rules of Civil Procedure section 402 for an example of acceptable language for an “Acceptance of Service” agreement.) In order for the acceptance of service to be valid, the form must be signed, dated, and sent back to the attorney who would otherwise be charged with officially serving the legal document.

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