The Due Process clause of the United States Constitution does not allow a court to have personal jurisdiction over a defendant unless the defendant has received proper notice of the proceedings before the court. As a practical application, courts require the plaintiff in each case to have the court summons and his or her complaint to be served on the defendant. The complaint and summons together equate to “process.”
Who can serve legal documents
Individual requirements to become a process server vary be each jurisdiction. However, it is common that a process server not be a party or attorney involved in the case. Additionally, he or she must be 18 years or older. These are the basic rules that are part of the Federal Rules of Civil Procedure. In some federal cases, the court can order service be made by a United States marshal, United States deputy marshal or a person who has been appointed by the court. In state cases, it is common for the sheriff’s department to serve process on the defendant. Professional process servers are also commonly used for this task.
Duties of Process Servers
The process server must fulfill a variety of legal requirements. He or she must serve the paperwork within the time proscribed by law. After service, he or she must complete a proof of service affidavit that informs the court about whom was served, when service occurred, where service occurred and how service was performed. Additionally, the process server returns this information to the plaintiff so that he or she can file it with the court.
Types of Service
There are a variety of ways to serve another party. Not all methods are available in all cases. Consult with your attorney before you attempt service on the other side to make sure that all legal formalities are fulfilled. If service of process is not completed in the proper manner, you will not be able to progress with your case, and jurisdiction can be contested at any point in the case.
Personal service occurs when a process server personally hand delivers the court papers to the named party. This may occur at the person’s home, workplace or other location. The process server must identify the party who is served and hand the papers to the individual. Additionally, he or she must inform the party that the documents are legal court papers. This method is often considered the most reliable because the court knows that the party has actually been served and received the necessary documents. This type of service is valid in every type of case and is often the method required when the original pleading is served (the complaint). The Federal Rules of Civil Procedure allow for the process server to leave a copy of the legal documents at the individual’s residence with someone who is of suitable age and discretion or by providing the documents to someone who has authorized by law or appointment to receive such service.
In this type of service, a process server mails the legal documents to the party being served at his or her home or mailing address. The process server still completes a form detailing proof of service, including information about the party to whom the documents were addressed, the location from which they were mailed and when the mailing occurred. When this type of service is allowed, certified mail is usually the preferred method.
Service by Posting
In limited cases, service by posting may be permitted. For example, landlords may be able to secure service by posting in eviction cases in which other attempts of service have failed. The court may require that a process server file additional paperwork in court to authenticate the service attempts. Other cases allow a plaintiff to serve the other party by posting the summons and complaint at the courthouse.
Service by Publication
Service by publication occurs when a party includes the summons and complaint in a newspaper in the area where the party is likely to reside. The court typically must provide permission for the party to complete service by this nature. This process usually requires a showing on the plaintiff’s part that other attempts to serve the party have failed, but the requirem