Personal service means that someone hands the defendant the relevant papers. You have various options regarding who performs this task. Of course, if you use someone who doesn’t personally know the defendant, the server will need to be particularly careful to serve the right person. These are your options for who can serve the defendant.
- Sheriff, marshal, or constable. All states allow personal service to be made by law officers, although not all officers will serve civil subpoenas. Using this method is often valuable for its sobering effect. The fee can be added to your judgment if you win.
- Private process servers. Many states also allow service by private process servers, whom you will find listed in the yellow pages. Fees charged are usually based on how long the service takes.
- Service by disinterested adult. Some states allow service by any person who is at least 18 years old, except the person bringing the suit. Any person means just that-a relative or a friend is fine. However, many states require that this person be approved by the court.
A mailbox isn’t personal enough. No matter who serves the papers, if personal service is used, the claim and a summons must be handed to the defendant. You can’t simply leave the paper at the defendant’s job or home or in the mailbox. If the process server locates the right person, but the person refuses to take the paper, acts hostile, or attempts to run away, the process server should simply put the paper down and leave. Valid service has been accomplished. The process server should never try to use force to get a defendant to take any papers.
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Certified Mail
In the majority of states, you can serve papers by sending them to the defendant via certified mail with a return receipt requested. In some states, service by certified (or registered) mail is one among several ways you may serve papers. Other states require you to try service by certified mail first, before any other method of service. Normally, the court clerk does the mailing for you and charges a small fee. This is recoverable if you win. The mail method is both cheap and easy, but in most states the defendant must sign for the letter for this type of service to be effective. (In a few states, service is accomplished even if a certified letter is rejected by the defendant.) Most businesses and many individuals routinely sign to accept their mail. However, some people never do, knowing instinctively, or perhaps from past experience, that nothing good ever comes by certified mail. The consensus in an informal survey of court clerks is that about 50% of court papers served by certified mail are accepted. If you try using the mail to serve your papers and fail, and you end up having to pay a process server, tell the judge about it as part of your presentation and chances are your costs will be added to the judgment.
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A minority of states, allow papers to be served by first-class mail. The states differ, however, on what you must do if the defendant doesn’t answer your complaint within the time limit. Check with your court clerk to see if this method is available in your area.
Substituted Service (or “Nail and Mail”)
It can be difficult to serve certain individuals. Some have developed their skill at avoiding process servers into a high art. In some states, avoiding service no longer works, as there is now a procedure that allows “substituted service” if you make “reasonable efforts” to serve a defendant and fail. Often the slang for this type of service is “nail and mail,” because in several states, if you are unable to serve the defendant personally, you do not have to leave the claim with a live person. Instead, you can simply tack one copy to the defendant’s door and mail the second copy.
In a typical state, substituted service works like this:
- 1. Small claims 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.
Serving Someone With a Post Office Box
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If you know nothing more than the individual 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).
Proof of Service
If you have asked the court clerk to serve your papers by certified mail, you need do nothing else. The court clerk sends out the certified mail for you, and the signed post office receipt comes back directly to the clerk if service is accomplished. It’s as simple as that.
However, a court has no way of knowing whether or not papers have been successfully filed by personal service, substituted service, or first-class mail unless you tell them. So, you are required to do so. Notification is accomplished by filing a form known as a Proof of Service with the court clerk after the service has been made. The Proof of Service form must be signed by the person actually making the service. A Proof of Service is used both by the plaintiff and by the defendant if the defendant files a defendant’s claim. It must be returned to the clerk’s office.
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