- Service of process
Service of process is the procedure employed to give
legal noticeto a person (such as a defendant) of a courtor administrative body's exercise of its jurisdictionover 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.
Each jurisdiction has rules regarding the means of service of process. Typically, a
summonsand 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 residence or place of business or employment. In some cases, service of process may be effected through the mail as in some small claims courtprocedures. 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 jurisdictionof 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 pleadingsand motion papers) between the parties to litigation.
In the pastwhen in many countries,which people didn't have the right to know that there were legal proceedings against them. In some cases, they would only find out when magistrates showed up with the sheriff and seized their property, sometimes throwing them into debtor's prison until their debts were paid. The Fifth and Fourteenth Amendments to the United States Constitution prohibit the federal government and state governments from depriving any person of life, liberty or property without due process of law. Therefore the process server is "serving" the recipient with notice of their constitutional right to due process of the law.
In ancient times, the service of a
summonswas 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 may be entry of a default money judgment that can subsequently be 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[ [http://www.dca.gov.uk/civil/procrules_fin/contents/parts/part06.htm PART 06 - SERVICE OF DOCUMENTS ] ] .
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 Rogatoryprocess. 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.
Common law systems
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
Some jurisdictions require or permit process to be served by a court official, such as a
sheriff, marshal, constableor bailiff. There may be licensing requirements for private process servers, as is the case in New York City. Other jurisdictions, such as Georgia, require a court order allowing a private person to serve process. Many private investigatorsperform process serving duties.
An example of such a license would be in
Rhode Island, where an applicant must complete 90 days of training with a constable that has 'full powers'. Once the 90 days of training is complete, a test is given at the local courthouse from the laws included in the constable manual. [ [http://jpsilvaggio.com/legal/ri/constable/ Rhode Island Constable Manual] ] Once an applicant passed the written exam one will be scheduled for an oral interview with the disciplinary board. If they find the applicant to be competent they will pass a recommendation to the chief judge which will then swear in one with 'limited power'. These constables can only serve within the county they are appointed. After one year, a limited power constable can apply for his/her full powers to arrest, evict, and be able to serve state wide.
New York, personal process is "required" in divorceand similar matrimonial lawactions, absent court permission. [For N.Y. Civil Practice Law and Rules (CPLR) § 308 and Domestic Relations Law (DRL) § 232,see [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS NY Assembly website] .Retrieved September 24, 2008.] Specific practice is that:quote|The defendant must be personally served with the divorce papers, unless the court grants some other means of service. Note that there are special requirements for service of process in a divorce action. See CPLR 308 and DRL 232.
J. Douglas Barics, attorney. [ [http://www.jdbar.com/Articles/divorce-procedure.html Divorce Procedure in New York fromLaw Office of J. Douglas Barics website] . Retrieved September 24, 2008.]
Civil law systems
In non-English speaking countries such as
France, the Netherlands, Germany, Japanand Chinawhich 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 servicendash "signification" and "notification". The huissier is only responsible for signification, the more formal type of service.
One matter that the "Practical Handbook on the Operation of the Hague Service Convention" (Practical Handbook) addresses is to explain the difference between signification and notification in legal systems based on the
Napoleonic Code. A copy of this Practical Handbook was most recently published in 2006 by the Hague Conference on Private International Law (HCCH). This fully revised and expanded edition of the Practical Handbook offers detailed explanations on the general operation of the Hague Service Convention as well as authoritative commentaries on the major issues raised by practice over the past forty years. The Practical Handbook analyses or otherwise refers to approximately 250 court decisions rendered in a great number of jurisdictions in relation of the Hague Service Convention. The Practical Handbook also contains a FAQ section and practical replies that offer a quick overview of the Hague Service Convention’s main provisions and basic features. This section is usefully complemented by four Explanatory Charts on various aspects of the Hague Service Convention’s operation. The paper edition of the Practical Handbook comes with a fully searchable and easy to use e-book (in PDF format). [ [http://www.hcch.net HCCH website] .]
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, substituted 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 substituted 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
ervice 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
complaintor petitionwithout 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.
Process serving laws
Each state has process serving laws, or Rules of Civil Procedure, that govern
civil procedurein 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.
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 communitiesand apartment buildings have created a curious predicament for process servers, however, most are required to allow process servers to enter them.
California, "Registered Process Servers" are granted "...a limited exemption against trespassing." This allows servers to enter a private property for a reasonable period of time to attempt service of process. Similarly, in California, gated communities which are "...staffed by a security guard, or where access is controlled, must allow a Registered Process Server to enter for service of process upon presenting valid identification, and indicating to which address the process server is going." The problem is that this does not prevent the security guard from contacting the resident and alerting them that a process server is on his way to their residence.
In Washington State "Registered Process Servers" are granted an limited exemption or
affirmative defenseagainst trespassing:
Most states have a deadline for completing service of process after filing of the
summonsand complaint. In New York, for example, service must be completed in 120 days after filing for almost all cases. [NY CPLR § 306-b, found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS NY Assembly website] . Retrieved September 24, 2008. (The exception is in election law, which is 15 days.)]
Dies non juridicum
Some states prohibit the delivery or serving of documents on Sundays, holidays, and/or election days ("dies non juridicum"). 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.
Federal Rules of Civil Procedure
* [http://www.law.cornell.edu/rules/frcp/ Complete text of Federal Rules of Civil Procedure (Cornell Univ.)]
* [http://www.napps.org The National Association of Professional Process Servers]
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