A process server is charged with serving the defendant in a civil lawsuit with a summons and a copy of the petition or complaint filed by the plaintiff in a case. A process server may also serve subpoenas for witnesses in both civil and criminal cases.
Why Service Is Necessary
Under U.S. law, a court does not have jurisdiction over a person unless that individual has properly received notification of legal proceedings pending against him. This means the court cannot make rulings affecting that person.
Therefore, every reasonable attempt must be made to ensure that the defendant or witness associated with a particular case has actual notice that the case is pending. He must be aware of what the case is about and of any action he is obligated to take.
Who Can Be the Process Server?
A process server can be a law enforcement official, but is often a deputy in the sheriff's office. He might also be someone who has been designated by the court as a process server or, in some instances, any adult over the age of 18 who is not a party to the case itself can serve legal documents pertaining to the case.
Read More: Rules for Process Servers
No Limit on Service Attempts
In theory, there is no restriction to the number of times a process server can attempt to serve a defendant or a witness. When a court issues a summons or a subpoena, a document commonly is known as a "Return of Service" is typically attached.
The Return of Service sets a deadline by which the defendant or witness must be served. In theory, a process server can attempt to serve the defendant or witness any number of times before the deadline.
Methods of Service
A process server can employ a number of different techniques to accomplish service. Ideally, he will actually hand the summons or subpoena directly to the defendant or witness. This is known as "personal service." Because this is considered the best type of service, a process server will normally make multiple attempts to serve a defendant or witness in this manner.
The next best type of service is to convey the summons or subpoena to a person of an appropriate age at the residence of the defendant or witness. Keep in mind that in most jurisdictions this does not necessarily have to be an adult. A minor who is of an age to understand the importance of service, perhaps in his mid to late teens, is generally considered to be an appropriate person to serve. Likewise, an adult who is mentally incapacitated and can't understand the importance of the papers he is accepting would not be an appropriate person.
Tacking on Last Known Residence or Serving by Mail
Tacking the summons or subpoena to the property of the last known residence of the defendant or witness can also be an acceptable means of service in some cases. This involves posting the legal document in question at the residence, normally on the front door. This type of service is not as convincing as that of personal service on the defendant or witness, however, because the individual can easily deny receipt of the document, perhaps claiming that someone snatched the document and ran off with it.
Finally, it is also acceptable in some cases to attempt to serve a person using certified mail, return receipt requested. Sometimes a second copy is forwarded via regular mail. If the individual doesn't sign for the certified mail but the regular mail is not returned as undeliverable after a period of time, it may be considered that he's been served.
Successful Service of a Defendant or Witness
The process server will execute the Return of Service after he has successfully served the defendant or witness. On this document, the process server states under oath that he or she lawfully served the defendant or witness within the time set forth by the court.
If the process server accomplished the service on the defendant or witness within the established time frame, that person is obligated to either appear in court or comply with the directives of the court within the time frame set forth in the summons or subpoena. If a defendant fails to perform, judgment can be taken against him in a lawsuit. If a witness fails to appear, he or she can be held in contempt of court and potentially arrested.
Failed Service of a Defendant or Witness
No matter how many attempts a process server makes, if he fails to legally serve the defendant or witness, that defendant or witness is obliged to do nothing. Depending on the circumstances, the court might grant additional time to obtain service, and if it appears to the court that the defendant or witness is intentionally avoiding service, the court can take other action. This can include a judgment against a defendant or issuing a warrant for the arrest of a witness.
Mike Broemmel began writing in 1982. He is an author/lecturer with two novels on the market internationally, "The Shadow Cast" and "The Miller Moth." Broemmel served on the staff of the White House Office of Media Relations. He holds a Bachelor of Arts in journalism and political science from Benedictine College and a Juris Doctorate from Washburn University. He also attended Brunel University, London.