Service Of Process -Complaint -Legal Requirements -Q & A

Q. I have recently received a summons and complaint. But I am uncertain whether it was properly served on me. What are the legal requirements of service of a complaint?

Before a defendant can be legally compelled to respond to a plaintiff’s civil complaint, the defendant must be lawfully served with a summons and complaint. Should the process of service be later determined by the court to be legally defective, the case will be dismissed leaving the plaintiff to begin the process all over again.

Service Of Process – State Rules Control 

While the specific rules of civil procedure governing the legal requirements vary between states, the intent driving these rules are always same: to afford the defendant fair and sufficient notice that a legal proceeding has commenced against the defendant and that the defendant is legally compelled to appear and respond to the allegations.

The legal requirement of notice and the opportunity for the defendant to be heard is fundamental to our system of justice. A party who has not been lawfully served cannot be legally bound by the case.

While each state has their own legal requirements, there are three basic ways to effect legal service on a defendant: personal, service, substituted service, and service by publication. Most if not all states require that the process server be over the age majority and is not a party to the action.

Personal Service – Actual Service

Personal service is made by hand delivery on the defendant and is by far the most reliable form of proving notice. Once the person is identified as the person to be served, the papers can be either handed to the person, or if the person refuses to accept them, the complaint and summons can be dropped at the person’s feet. That which is not considered personal service, is usually referred to as substituted service.

Substituted Service – Nail and Mail

In most cases, substituted service may be used only after diligent efforts to effect personal service have failed. For example, if the defendant cannot be found either at his or her home or at work, many states allow service to be made by leaving the summons and complaint with a person at the defendant’s home. That person however must be legally competent to accept service. This legal requirement is usually fulfilled if the person resides at the home and is of the age of majority.

Many states also require that the process server attach the summons and complaint to the defendant’s home or place of business and then mailing a copy of the papers, usually be certified mail, to the defendant’s last known address. This method is often called “nail and mail” service.

Unscrupulous process servers such as those contracted by collection agencies have been known to disregard the rules governing substituted service; especially when the process server has been unable to make personal service upon the defendant and the case is at or near it’s mandatory dismissal date for having unable to effect service of the complaint.

Service By Publication – Constructive Service

This method of service of process relies upon publication of the action in a newspaper of sufficient circulation. Service of the complaint and summons by the process of newspaper publication has been strictly construed by the courts since service by publication mostly relies on general notice. Clearly, not everyone reads the legal notice section of his or her local newspaper.

This is one reason why many states require that the party seeking service by publication first obtain the courts approval and must demonstrate they have acted with due diligence and that other method of service have failed. Usually the legal notice must be published in at least one newspaper of general circulation in the defendant’s geographical area.



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