It isn’t enough to file a lawsuit against someone in order to get access to the courts. You need to “serve” them with the lawsuit. In other words, you need to locate and present the defendant with the lawsuit in such a manner that they have formal notice of the existence of the lawsuit and its specific contents. This is often formally known as the “Service of Summons” (since you are being “summoned” to court).
Each state has their own laws regarding the proper service of lawsuits. You should consult your own state laws and/or an attorney to determine the precise laws in your individual state.
A majority of states usually allow for lawsuits to be served by either local Sheriff’s authorities, or what are known as “private” process servers. Many states allow private process servers to be anyone who is at least 18-years-old and is not a party to the lawsuit itself. In other words, if you file a lawsuit against somebody, you can’t serve the lawsuit yourself. You need to get a third party to do it. Some states require people who regularly serve legal papers to be formally licensed as a process server. Once again however, each state has its own laws. Some do not have a license requirement or will allow for unlicensed process servers if they only serve a limited amount of lawsuits each year. Others have stricter requirements. Many states will allow your attorney to serve the lawsuit as well. Be sure to consult the law or an attorney in your own state.
Different types of service
Generally, in order to serve somebody with a lawsuit, you need to locate them and physically hand the court documents to them or place them somewhere in their presence. However, most jurisdictions also allow for either “service by mail” or “substituted service” if the defendant cannot be easily located.
In California for instance, if you cannot personally serve somebody after an attempt with “reasonable diligence”, you can perform a substituted service by leaving a copy of the summons and of the lawsuit complaint at the defendant’s dwelling house, usual place of business, “or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business” and then mailing another copy of the summons and complaint (with first-class postage) to the person to be served at the same location where you left the first copy. Private post office boxes can still accept substituted service in California (just not official U.S. Postal Service post office boxes). Also note that the “competent member of the household or a person apparently in charge” of the business that you leave the complaint with must be at least 18 years of age and has to be informed of the contents of the papers that you are leaving there.
Many states have similar provisions for substituted service. Once again however, each jurisdiction has its own set of laws regarding the service of legal papers that may differ significantly from one another.
Service by mail
As indicated, many states also allow you to mail the summons to the defendant. However, special forms are often required. If a defendant refuses to acknowledge the mailed summons, then you may have to resort to personal or substituted service. Check with you local court celrk for specific rules on service by mail.
Service of summons outside of your state
States will usually allow you to serve a lawsuit on somebody located in another state or country provided that they are subject to the jurisdiction of the court in the state where you are suing them. You may wish to consult an attorney in this instance to determine if special rules apply.
If you are suing a corporation, most states require them to list an individual agent to accept service for all lawsuits directed against the company. Check with the secretary of state’s office in whatever state the company is incorporated in to help determine who the listed agent for service is.
Once you file a complaint in court, there is usually a deadline to serve the defendant with the summons. Deadlines differ with each jurisdiction. For instance, California requires service within 60 days of the complaint being filed, though one can petition the court for more time. Federal lawsuits have a deadline of 120 days. Florida and New York also have 120 day deadlines.
Service by publication
If you are unable to locate a defendant and can show to the court that you have made reasonably diligent attempts to do so, you can ask the court’s permission to serve the lawsuit by ‘publication’ as a last resort in some states. Service by ‘publication’ involves printing a notice of the lawsuit in the local newspaper (usually with the notice being published several times over the course of a fixed number of weeks). After the final notice has been published, the defendant will be deemed ‘served’ and on notice about the lawsuit (even if it might not actually be the case). However, you must get the court’s permission before attempting service by ‘publication’. It will only be granted if you can show that the defendant’s address cannot be found.
Proof of service
Once the service of summons has been completed, you should be given a “proof of service of summons” form by the person who served the papers on the defendant. This serves as a type of ‘receipt’ proving that he or she did indeed serve the defendant at a particular time and place. If you are attempting service by mail, the defendant will need to mail you or your attorney a court form acknowledging the receipt of the summons to serve as this proof.
Once you have the proof of service, you must then file it with the court. At that point, the defendant will have a specific deadline to respond to your lawsuit complaint, and the process will be underway.
Remember, each jurisdiction will have its own particular rules for service of process. Please consult an attorney or your local court clerk on specific procedures in your own state.
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.