It is important to first understand that the rules regarding initiating and serving a lawsuit will be dependent on the type of lawsuit being initiated and the jurisdiction in which that lawsuit is being brought. As such, the local rules of the jurisdiction will control when it comes to the rules and requirements for service of process.
In general, most lawsuits arise out of civil tort law. Civil tort law is intended to deter or discourage further wrongdoing by providing monetary damages for foreseeable harm that was caused by or was the direct result of, another person breaching their duty of care. Common examples of wrongdoing include, but may not be limited to, things that:
- Cause physical and/or economic injury;
- Cause pain and suffering;
- Violate privacy, property, and/or constitutional rights;
- Damage a person’s reputation.
Torts are generally classified as either intentional, unintentional, or strict liability torts. Intentional torts are wrongful acts that were done on purpose. Unintentional torts generally involve a claim based on negligence. Simply put, an unintentional tort is an accident that causes harm to another person.
Strict liability torts are those in which the plaintiff does not have to prove that the defendant violated a standard of care. Strict liability generally applies in cases involving inherently dangerous activities. As such, the defendant is liable simply because they were doing something dangerous and someone got hurt.
When initiating a civil tory lawsuit, the filing party is legally obligated to serve the party that they are claiming has damaged them. Once the civil complaint has been filed, the defendant will have an opportunity to answer the allegations in a document called an answer. If the defendant has a personal claim against the plaintiff, the defendant may also file a complaint, which is generally referred to as a counterclaim. At this early stage in the lawsuit, any relevant third parties may also be added to the litigation through various procedural steps.
Failure to properly serve a party will result in the lawsuit being dismissed by the court in which the lawsuit was initiated. Further, failure to execute and file proof of service within the statute of limitations for the claim may result in the plaintiff (i.e., the party alleging that they were harmed) being barred from ever bringing their claim.
Examples of other lawsuits that require the opposing party to be notified include cases involving family law. In family law cases, the other party must be notified of a lawsuit being filed and be allotted a certain amount of time to respond to the allegations of the lawsuit once properly served. As such, properly serving a lawsuit is important in order to ensure that the lawsuit may proceed within the court system.
Who Can Serve the Other Side?
It is important to note that not everyone is entitled to serve a lawsuit. Once again, service of process means that the other party to a lawsuit has properly received copies of all the paperwork the petitioning party has filed with the court. In general, the lawsuit paperwork must be served by a third party and not a party to the lawsuit.
In general, the “server” or “process server” can be any of the following:
- A friend or relative not named in the lawsuit;
- A coworker or employer;
- A county sheriff or court marshal;
- A professional process server or process-serving company; and/or
- Anyone over the age of 18 who is NOT a party to the case.
When serving a lawsuit, the server or process server MUST:
- Serve the paperwork on the other side in the time required by the statute that controls the lawsuit;
- Fill out a proof of service form that tells the court whom they served, when they were served, where they were served, and how they were served; and
- Return the proof of service to the petitioning party so that they can file it with the court.
In general, a sheriff or professional process server will have forms available to them that they fill out and then file with the court immediately after executing proper service. Further, they may not be able to serve the opposing party. If not, then they can file information concerning their attempts to service that would then allow the petitioning party to seek permission to utilize alternative forms of service.
Alternate forms of service include:
- Serving a person through email;
- Taping the lawsuit to their front door
- Leaving the lawsuit with any inhabitants of their last known address;
- Serving the opposing party through their social media.
What Are the Types of Service?
There are several different ways in which a petitioning party is legally allowed to serve the other party involved in a lawsuit. However, not all types of service are allowed in some cases or at some stages of a case. As such, it is important to determine what types of services are allowed by your specific jurisdiction. In general, the main types of service are:
- Personal Service: Personal service may be executed by someone who is over the age of 18 and is not a party to the case. That person must personally serve the other side with all the proper documents;
- Service by Mail: An individual who is not a party in the case may also mail the documents to the other party at their last known mailing address. The server must then fill out a proof of service detailing where the papers were mailed.
- It is important to note that many courts typically require that certified mail with a return receipt be utilized. This ensures proper service is demonstrated through the receipt showing the intended recipient received the paperwork;
- Substituted Service: Substituted service, or alternative service, was discussed above and is used after there have been several failed attempts in personally serving the other party.
- Once again, a process server may have already tried serving the other side at different times of the week. If this is the case, then the papers can generally be left with someone who appears to be in charge and is over the age of 18 years old; and/or
- Service by Notice and Acknowledgement of Receipt: The other side may also just sign a document that waives their right to service or acknowledges that they have been properly served. This is often utilized in cases in which the parties agree to the outcome of the lawsuit.
Filling Out and Filing the Proof of Service
Once again, in any and all civil cases, the party that initiates the proceedings must notify the court that the other side was properly served after proper service has been executed. The process server must always fill out and sign the proof of service form detailing how the other side was served, the type of service used, what time the opposing party was served, and to whom the documents were served.
After that, the process server should make a copy of the proof of service, take the copy and the original to the court in which the lawsuit originated, and file a copy with the clerk. At that point in time, once proper service has been executed, the opposing party will be put on the clock, so to speak, to respond to the allegations in the lawsuit. Failure to timely respond will then allow the filing party to receive a default judgment.
Do I Need an Attorney for Service of Process?
If you are initiating a civil lawsuit, it is important to make sure that you closely follow the counsel of a personal injury attorney or other civil law attorney in order to ensure that proper service is executed and your lawsuit may proceed.
An experienced attorney will ensure that proper service is executed, as well as help you initiate a lawsuit to recover any damages you are entitled to or help you obtain what you are seeking.
Further, there are many professional service organizations, as well as courts, that specialize in the service of process for a small fee. An attorney will know the best path to executing proper service at the best cost to yourself. Finally, an attorney will also be able to represent you in court as needed.