Anyone would logically want to know about it if someone was suing them, so they can take the necessary steps to defend themselves, and U.S. law recognizes this. Defendants – those who are being sued – have the right to receive notice. All states require “service of process” at the beginning of a lawsuit to achieve it.
A court can dismiss a lawsuit, effectively finding in favor of the defendant, if service isn’t achieved the right way, because lack of service is considered a defense to the allegations made.
The Basics of Service of Process
A copy of the lawsuit, including notification of the date, time and place of any hearing, must be delivered to all the defendants involved in a suit, not just one defendant, if multiple individuals are named. This is the case even if the defendants are married to each other or own a business together. Serving just one of them won’t suffice.
There are multiple methods of acceptable service, but they can depend on state law and the type of lawsuit that’s been filed. In almost all cases, the plaintiff whose filing the lawsuit must find a disinterested third party – someone not involved in the lawsuit – to deliver the court papers. This individual is usually referred to as the “server” or the “process server,” and finding someone to fill this role isn’t all that difficult.
Read More: Rules for Process Servers
Rules of Jurisdiction
A court needs “jurisdiction” over the defendants to rule in a lawsuit. This generally means that the defendant must live or own a business in the state where the court is located. Plaintiffs generally can’t sue someone in one state and have them served in another, because the court where the legal documents were filed wouldn’t have jurisdiction over someone in the other state.
Some states make exceptions to this rule for certain small claims cases, but it can pay to keep the rule in mind. A plaintiff would probably want to file their lawsuit in a New Jersey court and look for a New Jersey process server if they're suing someone in New Jersey. They can check with a local attorney or the court clerk about state’s rules.
Finding the Individual to Be Served
Of course, the first challenge is to determine exactly where the defendant lives, works or can otherwise be located.
With any luck, the plaintiff already has a home or business address, but all’s not lost if they don’t. They can check for a forwarding address with the post office in the area where the defendant was last known to reside, or call “411” and ask for a landline listing in the individual’s name. Inquire among family members and friends of the individual they're looking for – always keeping in mind that they might not be forthcoming if they know someone is trying to serve court papers in a lawsuit. Searching property records with the county can also be helpful.
The internet can be a great friend if all else fails. Multiple search engines will let plaintiffs plug in someone’s name; possible addresses and phone numbers may pop up. Don’t overlook social media websites, either. Search for the name of the individual and see what turns up. Plaintiffs can consider hiring a private investigator if they absolutely hit a brick wall.
When There's Just No Available Address
Most courts are set up to offer alternative means of service if a plaintiff can’t find someone to serve court papers or every effort to find the defendant has failed. And service does not have to be accomplished at the individual’s home or place of employment. The plaintiff can have them served at a gym if they know where and when they work out or even at a happy hour if they know of a pub they visit with some regularity.
Personal Service by Sheriff or Constable
A plaintiff can use personal service if they've determined where the defendant can likely be found. This involves arranging for someone to personally hand the paperwork to them. The easiest way to do this is through the sheriff’s or constable’s office in the area where the defendant lives or works. Again, jurisdiction is something of an issue because law enforcement can’t and won’t go into a neighboring county to serve court papers.
This option will cost a little money, but the court will usually order the defendant to reimburse the plaintiff if they win the lawsuit, and this method is usually cheaper than hiring a private process server.
Private Process Servers
Yes, some people who serve court papers are actually in the business of doing this for a living. Look in the yellow pages for listings, do a search online, or ask the court clerk for names. Plaintiffs should take note of how long they’ve been in business to be sure they’re reputable, and provide them with a photo of the defendant, if possible, so they can more easily identify whom they’re looking for.
Disinterested Third Parties
Finally, most states will allow plaintiffs to use a disinterested third party, such as an adult friend or family member, to deliver court papers if they really don’t want to or can't pay for service. They can check with the court clerk to find out if a judge’s official approval is required to use this method.
The process server must be age 18 or older, and they can usually just place the papers on the ground at the defendant’s feet if they refuse to accept service. This is perfectly OK and constitutes service in most jurisdictions, so a friend or family member doesn't have to risk an altercation.
Service by Mail
Some states and types of lawsuits allow for service by mail. Plaintiffs can send the court papers to the defendant through the good old USPS, by certified mail with return receipt requested. Sometimes, the court clerk will even take care of this for for a small fee when the lawsuit is filed.
Again, the plaintiff should get the money back from the defendant if they win the case. The downside is that the defendant might actually have to sign for the mail for this method of service to be acceptable, and they could well refuse.
Some states require that a third party must physically deliver the mail to the post office – the plaintiff or person bringing the lawsuit can’t do it. Ask the court clerk about any state-specific rules.
Service by Publication
The service by publication option is sometimes approved by courts when plaintiffs absolutely cannot find out where the defendant is living or working. They’ve effectively disappeared into thin air. This is more common in divorce cases. The court will issue an order allowing the plaintiff to publish the summons and the lawsuit complaint in a newspaper that meets certain circulation requirements in the area where the defendant was last known to be living.
Getting such an order invariably requires that that the plaintiff provide proof to the court that they couldn’t find the defendant despite multiple efforts at “due diligence” – in other words, they really tried. They'll probably have to write up and submit a statement or affidavit detailing the efforts they made, and additional paperwork might be required as well.
Substituted Service When Other Methods Are Inappropriate
Some states allow for substituted service in certain types of lawsuits, sometimes called “nail and mail,” “substituted delivery” or “conspicuous delivery.” The same rules as those for personal service typically apply here – the server can’t be a party to the lawsuit and must be an adult – but if they can’t get the defendant to open his door at their knock or the defendant is otherwise trying to avoid service, they can just conspicuously post the legal papers on his property. This is commonly allowed in eviction cases.
Posting must be followed up by also mailing a copy of the papers, usually on the same day, and this type of service might only be permitted when the defendant has successfully dodged receiving the papers several times during various hours of the day and night.
A Variation of Substituted Service
A variation of substituted service involves leaving the paperwork with a coworker or adult resident of the defendant's home. The individual must usually understand that they’re court papers. The process server will need the person’s name and address, but a detailed physical description might suffice if they refuse to give this information. And yes, it’s probably going to require filing more paperwork with the court, such as a Declaration of Due Diligence explaining why this type of service was necessary.
Acknowledgment of Service
If the plaintiff is very lucky and the defendant is willing to simply accept the court papers, most state courts will allow them to file an Acknowledgement of Service form signed by them, agreeing that they’ve received the papers. The process server can simply mail a copy of the court papers along with the acknowledgment if the defendant is willing. The defendant then signs the acknowledgment and returns it to the server, and voila – service is accomplished.
When Papers Have Been Served: The Next Step
Regardless of how service is achieved, it doesn't end here. All states require that plaintiffs let the court know how and when service on the defendant was accomplished. This means filing a Proof of Service with the court, sometimes called an Affidavit of Service, providing all the details. An exception to this rule exists if the court clerk took care of mailing the court papers.
In the case of substituted service to a coworker or other party who won’t give their name and address, this form is for the process server to include the physical description of the individual. A Proof of Service must accompany the Acknowledgement of Service if the plaintiff was lucky enough to achieve this type of delivery – the Acknowledgment of Service on its own won’t suffice.
The plaintiff can’t complete and sign the Proof of Service themselves. This must be done by the process server The sheriff or constable’s officer or an experienced private process server will normally complete the form as a matter of course and give it to the plaintiff, so they can submit it to the court.
The Bottom Line
The finer particulars of all these rules can vary from state to state or even from court to court within the same state. What might be perfectly acceptable in a divorce or landlord/tenant matter might not be approved in a civil employment action for wrongful termination. But serving court papers by sheriff or another government employee or a private process server is almost universally allowed.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.