Rules for Process Servers

By Joseph Nicholson
Rules for Process Servers

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In civil lawsuits, providing the other side with adequate notice is an important element that helps keeps the proceedings, well, civil. All states have time limits by which complaints must be answered or responded to by defendants, or a default judgment can be entered against them. But no court expects a person to answer a complaint he knows nothing about. Thus, the time toward these limits usually doesn't start counting until the defendant is served with the complaint and a court summons notifying him of the suit. Process servers are the people who do this, and they are held to very specific rules.

Who Can Serve

The Federal Rules of Civil Procedure allow anyone who is at least 18 years old and not a party named in the complaint to act as process server. Many states echo these minimal requirements in their laws. Some, however, only permit service by a sheriff, marshal or registered or licensed or bonded process server. Others limit service to persons over 21 years of age and have a residency requirement.

How to Serve

The federal rules describe effective service in three ways. Proper service consists of either delivering the summons and complaint to the person directly; leaving a copy at her residence with another resident of adequate age (18 or 21); or delivering a copy to a registered and authorized agent or attorney for the person. Corporations are usually served through their registered agent. Any effective service under applicable state laws is also adequate for federal actions.

When to Serve

In federal court, a complaint must be served on a defendant within 120 days of filing, or the court must dismiss the case. States have similar time requirements. Many states also limit the days on which process can be served. A few states prohibit service at residences on Sunday. Others prohibit service on holidays or when the defendant is in transit to or from a courthouse.

Acceptance

A widely observed rule of process serving is that the person receiving service usually does not have to accept service for it to be valid. State laws vary, but if service is attempted at a defendant's residence and the defendant answers the door but refuses papers, the documents can simply be left at the door. In some states, touching or being touched by the papers constitutes acceptance of service, while in others merely acknowledging being the intended defendant is all that's needed.

Proof of Service

Once a process server has effectuated service, the final essential aspect of his task is to provide proof of that service to the court. Usually this is done through an affidavit on which the date, time and manner of service are recorded. This affidavit is then either mailed or hand-delivered to the clerk of court where the complaint was filed. An error in filing the proof service by the process server will usually not adversely affect the plaintiff or the validity of the service itself.

About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.