How to Properly Serve a Defendant
Seth Rogen: Walter Watson, the Third?
Walter: Yes, are you here to fix the fax machine?
Seth Rogen: No, I am here to tell you that you owe Mastercard 4,016 bucks. You've been served by the best my friend.
Walter: <Insert 20 seconds of Expletives>
- Scene from Pineapple Express wherein Seth Rogen's character serves defendants with lawsuits.
As shown in the video above, serving court papers on someone can be a pretty unpleasant experience. But it is a necessary step that every plaintiff must take in order to properly file a small claim, divorce action, or lawsuit against a defendant. Normally, papers must be served in the state where you filed your lawsuit. Assuming the person you want to sue resides or does business in your state, you can serve papers anyplace in the state.
There are several ways to serve papers on a defendant. All depend on your knowing where the defendant is. If you can't find the defendant personally and do not know where the person lives or works, you won't be able to complete service, and you probably shouldn't be filing a lawsuit.
Personal service means that someone 1) who is NOT the Plaintiff and is at 2) least 18 years old serves the court papers onto the defendant 3) in the defendant's immediate presence (simply leaving the papers in the Defendant's mailbox is not proper personal service). The Plaintiff may not personally serve the defendant him/herself. This rule exists to ensure civility between the parties a.k.a. so that Plaintiff doesn't end up getting punched or shot by the Defendant. As a Plaintiff, you actually have several options for who can serve the defendant via personal service.
1) Sheriff, Marshall, or Constable: Most if not all states allow personal service to be made by police officers. There is a fee for this but it can be added to your judgment if you win your case. Getting the sheriff to serve the defendant is often effective when the defendant is clearly trying to evade service. Moreover, asking the sheriff is pretty much mandatory if the defendant lives in a gated community that requires the consent of the defendant before anyone can go through the gate. If the property manager or defendant is shown a badge, the odds that the defendant will let the Sheriff serve him/her is pretty high. If a police officer completes a proof of service saying that he/she served the Defendant, the law presumes that the Defendant was actually served and the burden is on the Defendant to prove that he/she was not actually served.
2) Private process servers. Many states also allow Plaintiffs to hire private process servers to effect personal service. Fees charged are usually based on how long the service takes. It is helpful if the Plaintiff can provide the server with a picture of the defendant, description of the defendant's car, and the defendant's work schedule. Just make sure that the server isn't a stoner like Seth Rogen's character from Pineapple Express.
If a process server completes a proof of service saying that he/she served the Defendant, the law presumes that the Defendant was actually served and the burden is on the Defendant to prove that he/she was not actually served.
3) Personal Service by Someone Over 18. The Plaintiff can also have someone over the age of 18 and not a party to the action serve the Defendant. If the Plaintiff hires an attorney, the Attorney will sometimes serve the defendant him/herself. You can also ask a friend or relative. Obviously, you need to make sure that the Defendant doesn't have any violent tendencies or you'd be exposing the friend/relative to harm.
If you ever have to serve a Defendant on behalf of the Plaintiff, below are some practical tips for making sure you are able to track the defendant down and properly serve them. These tips are borderline stalkerish, but hey you have to get the job done. You should only use these tips if the Defendant refuses to voluntarily accept service of the court papers or is deliberately avoiding service.
Do NOT tell the Defendant that you plan on serving them. You are just telling him/her how to avoid you. Just serve them. Period. The necessity for unnecessary courtesy flew out the window as soon as the lawsuit was filed.
Have the Plaintiff give you a picture of the Defendant, so you don't serve the wrong person. AWKWARD.
If you know where the Defendant works, serve him/her the papers during regular business hours. He/she will have nowhere to hide. (insert evil laugh)
If you are serving the Defendant at their residence, get there before they leave for work. And then when they're in their driveway, you can simply go up to them and hand them the papers. This eliminates the need to knock on their door and also eliminates the possibility of them ignoring or avoiding you.
Pretend to be delivering a package or flowers. If the Defendant's front door doesn't have a PEEP hole for them to see who's knocking, that means they probably can't see you. When they ask, "who is it?," I love to say "Fedex, you got a package." They will instantly open the door. Never Fails. The resulting look of anger and confusion on their faces is classic. I've personally done this several times. If the Defendant is female, you can say "I have Flowers for you." The door will open instantenously. Hell, why not buy a cheap bouquet of flowers so that it's more convincing? Serve the Defendant with the papers and then give the flowers to your girlfriend or wife.
OUTFITS. I doubt you need to go this far but wearing a brown shirt, shorts, and a brown baseball cap will make you look like a Fed-ex driver. If you want to go for the Mormon look, simply wear a white button down and black dress pants. Hopefully, you don't need to be this creative in order to serve someone with court papers.
What The Server Needs to Say when Personally Serving Someone: There is really no need to be petty, overly dramatic, or rude like Seth Rogen's character from Pineapple Express. All you need to say is the following: "<Name of Plaintiff> has asked me to serve these court papers on you." That's it. If you want, you can also give a general description of the lawsuit. "These are divorce papers." It doesn't matter if the Defendant refuses to take the papers from your hand. As long as you say those words to the Defendant in his/her presence, you can simply lay the papers on the ground next to them. Personal Service has been effectively achieved.
Sometimes, it's impossible to serve certain individuals. Luckily, there is now a procedure that allows "substituted service" if you make "reasonable efforts" to serve a defendant and fail.
Usually, substituted service works like this: 1) court papers may be served by an adult who is not named in the lawsuit by leaving a copy at the person's dwelling place in the presence of a competent member of the household who is at least age 18 (and who must be told what the papers are about) or at the person's workplace during normal business hours with the person in charge (who must be told what the papers are about) 2) On the same day, a copy of the papers must also be mailed to the defendant by first-class mail.
Service is complete ten days after mailing. Be sure that all steps, including mailing the extra copy, are carried out by an adult who is not named in the lawsuit.
Substituted service should be your absolute last resort because the Defendant can challenge substituted service in court by saying he/she never received the papers, he/she no longer lives there, or that the papers were left with someone whom Defendant does not know. And if the Defendant effectively quashes the proof of service, it will delay the Plaintiff's case and the Plaintiff will be required to re-serve the papers on the Defendant. Personal service is always preferred.
Serving Someone with a Post Office Box
If you know nothing more than the defendant's post office box, you'll need to get a street address in order to serve the person. To do this, you must give the post office a written statement saying that you need the address solely to serve legal papers in a pending lawsuit. This should work, but if it doesn't, refer the post office employee to the Post Office's Administrative Support Manual § 352.44e(2). There is no fee for the Post Office providing this information. 39 CFR § 265.6(d)(4)(ii).
Fill Out and File The Proof Of Service
After the Defendant has been served through personal or substituted service, the person who served the papers has to fill out and sign a Proof of Service Form. If the Plaintiff hired the Sheriff, an officer will fill out a proof of service and mail it to the Plaintiff. The Proof of Service must then be filed with the Court so the court knows that the Defendant has been satisfactorily served. Do not assume that the server will automatically file the Proof of Service with the Court, unless you have specifically instructed them to do so. Otherwise, you need to go to court yourself to file the proof of service.
As long as you follow these steps, serving the court papers shouldn't be too much of a hassle. If the Defendant lives in the ghetto or somewhere shady, I highly highly recommend getting the Sheriff to do it.
Good luck and be safe!
Disclaimer: I do not own the rights to the video posted above nor am I the creator or original Youtube poster of said video.
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