After a lawsuit is filed, the next step is for the person who filed the lawsuit to deliver a copy of the lawsuit and a notice about the lawsuit to the other party. This is known as “service of process” and a lawsuit cannot proceed until either this important step is completed or the court says that enough of an effort has been made to serve the other party.
The traditionally accepted means of serving a person with notice of a pending lawsuit is by personal service. This occurs when a process server hand delivers the lawsuit and notice to you personally. While this method of service is preferred because there is no doubt you receive your paperwork, it is not the only method of service.
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When Someone Else Can Be Served in Your Place
Every state has provisions allowing a party to be served with notice of certain lawsuits by having someone else served instead. Sometimes, it is easier for one of several reasons for the process server to give your paperwork to another person and trust that this other person will deliver the notice to you.
While not the preferred method of service, there are at least three situations in which most states will permit this form of service to happen:
You Are a Business and You Designate an Agent
In many states, in order to form or carry on a legitimate business in the state you must designate an agent who can be served within the state. This person is anyone over the age of 18 years who you authorize to be served for your business. If someone within a particular state wishes to bring a lawsuit against your business, they can do so by serving your designated agent.
If you do not designate an agent, or if a person attempts to serve your agent but cannot do so, most states allow that state’s Secretary of State to receive service of process on your behalf. Like with the requirement of designating an agent, states will hold that allowing the Secretary of State to be served on your behalf if no other service is possible is a cost of doing business in that state.
You Give Someone Power of Attorney
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You do not have to be a business to have someone be able to accept service of process for you. Perhaps you are a busy professional who is constantly on the move and is away from their home for a good portion of the workweek. In this situation, it can be challenging even for a seasoned process server to deliver notice of a lawsuit to you.
In this case, you could designate someone to act as your power of attorney and enable that person to accept service on your behalf. If the power of attorney becomes aware that a process server is attempting ot serve you, they could then accept service on your behalf. The legal effect would be the same as if the process server had served you personally, and you would have the same deadlines you would otherwise have.
A lawyer you retain can also accept service on your behalf. Perhaps you fear that someone is about to file a lawsuit against you and so you go out and hire an attorney. When that person does file a lawsuit, your attorney (with your permission) can accept service on your behalf.
In all of these situations, having someone who designate ahead of time who can receive service of process for you can save you the headache and embarrassment of being served with papers at an inconvenient time.
Someone Over the Age of 18 Years Lives in Your Home
Suppose that a process server has attempted to serve you multiple times at your home, but each attempt has been unsuccessful. The process server may have suspicions that you are trying to avoid being served, or perhaps the process server simply has bad timing. In either case, after making a reasonable effort to serve you personally, the process server can request permission of the court to leave your notification paperwork at your residence. This is known as residence service.
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The process server cannot simply drop your paperwork on the doorstep, however. They must first have evidence that the residence is indeed the place to where you regularly return and that you are expected to return to that location in the near future.
Second, the process server must leave the paperwork with someone who also lives at that residence and who is over the age of 18 years.
The process server then files a return with the court indicating that while they did not serve you personally, they did meet both requirements to leave your notice with another person.
Personal Service is Still Preferred
Even though state laws provide for process servers to serve you by delivering your paperwork to another person, if you are a private individual being sued as a private individual, the preference is still for personal service to be accomplished. For this reason, before a process server can obtain permission to serve you using residence service, they must show the court that they have tried to serve you personally and have been unable to do so.
Similarly, before most secretaries of state will accept service of process for a business, the process server needs to show they have made efforts to serve the business’s agent.
Knowing All Your Options When It Comes to Service of Process
An inexperienced process server may simply attempt to serve someone personally and give up if they are not able to do so. This shows the importance of using a process server who is experienced in their trade and familiar with your state’s laws. Defendants who are attempting to avoid service or who are difficult to serve personally may be able to be served by leaving the paperwork with another person. However, it is crucial that your process server know the laws of your state and when and how these alternative methods of service are available.
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