Service of process
Each legal jurisdiction has rules and discrete terminology regarding the appropriate procedures for serving legal documents on a person being sued or subject to legal proceedings. In the U.S. legal system, service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party, court, or administrative body in an effort to exercise jurisdiction over that person so as to force that person to respond to the proceeding in a court, body, or other tribunal. Notice is furnished by delivering a set of court documents to the person to be served.
Service
Each jurisdiction has rules regarding the appropriate service of process. Typically, a summons and other related documents must be served upon the defendant personally, or in some cases upon another person of suitable age and discretion at the person's residence or place of business or employment. In some cases, service of process may be effected through the mail as in some small claims court procedures. In exceptional cases, other forms of service may be authorized by procedural rules or court order, including service by publication when an individual cannot be located in a particular jurisdiction.Proper service of process initially establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. The defendant may contest the default in the defendant's home state. Service of process must be distinguished from service of subsequent documents between the parties to the litigation.
Service of process in cases filed in the United States district courts is governed by Rule 4 of the Federal Rules of Civil Procedure. In England and Wales, the rules governing service of documents are contained within Part 6 of the Civil Procedure Rules 1998. In Canada the rules vary from province to province and can be governed differently depending on what the type of case.
Service on a defendant who resides in a country outside the jurisdiction of a court must comply with special procedures prescribed under the Hague Service Convention if the recipient's country is a signatory. Service on defendants in many South American countries and some other countries is effected through the letter rogatory process. Where a defendant's whereabouts are unknown, a court may permit service by publication, usually in a newspaper.
Manner of service
Substituted service
When an individual party to be served is unavailable for personal service, many jurisdictions allow for substituted service. Substituted service allows the process server to leave service documents with another responsible individual, called a person of suitable age and discretion, such as a cohabiting adult or a teenager. Under the U.S. Federal Rules, substituted service may only be made at the abode or dwelling of the defendant. California, New York, Illinois, and many other United States jurisdictions require that in addition to substituted service, the documents be mailed to the recipient. Substituted service often requires a serving party show that ordinary service is impracticable, that due diligence has been made to attempt to make personal service by delivery, and that substituted service will reach the party and effect notice.Another method of substituted service is "service by publication" also called "constructive service" in some jurisdictions. Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, or unknown, and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence". Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address. Service by publication usually involves placing the petition for divorce and the summons to a missing spouse in a local newspaper.
In divorce cases, most states that permit service by publication will require due diligence to locate the missing spouse, which can include verifying with the post office that there is no forwarding address; contacting in writing all friends, relatives, and former employers of a spouse who may know the spouse's current address; checking all jails and prisons for any record of a spouse; and checking military records for a spouse.
In addition, in some jurisdictions, substituted service may be effected through motion and public notice, followed by sending the documents by certified mail.
Courts in at least two Canadian provincial jurisdictions have allowed for substituted service via Facebook. In 2018, the Ontario Superior Court of Justice allowed service via Instagram and LinkedIn's built-in messaging systems.
Service by mail
Service by mail is permitted by most U.S. jurisdictions for service on defendants located in other U.S. states or foreign countries. Service by mail is not available if the country of destination has filed objections to service by mail pursuant to the multinational Hague Service Convention. In California, "Any person providing thereceive service of process".
Voluntary acceptance of service (United States)
As a substitute for personal service by a process server, some jurisdictions may allow voluntary acceptance of service, also called waiver of service. It means that the served party agrees to voluntarily acknowledge receipt of the complaint or petition without the need to engage a process server.Acceptance or waiver of service is encouraged by some court systems, especially U.S. federal courts. Under the Federal Rules of Civil Procedure 4, when a defendant refuses to waive service "without good cause", the defendant can be held liable for the cost of personal service.
Personal service by court services process server
Personal service is service of process directly to a party named on the summons, complaint, or petition. In most lawsuits in the United States, personal service is required to prove service. Most states allow substituted service in almost all lawsuits unless a corporation, LLC, LLP, or other business entity is being served; in those cases, personal service must be achieved by serving the documents to the registered agent of a business entity. Some states, e.g. Florida, do not require that the documents actually be handed to the individual. In California and most other states, the documents must be visible to the person being served, i.e., not in a sealed envelope. If the individual refuses to accept service, flees, closes the door, etc., and the individual has been positively identified as the person to be served, the documents may be "drop served" ; this is considered a valid service. In the US, personal service of process has been the hallmark for initiating litigation for nearly 100 years, primarily because it guarantees actual notice to the defendant of a legal action.Digital Delivery of Legal Documents
Digital delivery of legal documents refers to the use of secure electronic channels such as e-mail, dedicated secure web portals, and cryptographically-anchored systems to effect compliant service and receipt of court papers. In many jurisdictions, courts now permit parties to consent to electronic delivery in lieu of traditional personal service or mail, provided that the method ensures authentication of the recipient and reliable proof of transmission. Typical safeguards include multi-factor identity verification, secure socket layer encryption, and automated delivery receipts that log date, time and file integrity.Common law systems in the United States
In most states a person that serves the process simply must be 18 years of age or older and not a party to the litigation.Most jurisdictions require or permit process to be served by a court official, such as a sheriff, marshal, constable, or bailiff. There may be licensing requirements for private process servers, as is the case in New York City, Alaska, Arizona, California, Georgia, Illinois, Montana, Nevada, and Oklahoma. Arizona process servers are required to apply for certification with the clerk of the Superior Court in the county in which they reside. Non-resident applicants may apply in any county. Texas process servers are currently certified by order of the Texas Supreme Court and are regulated through the Process Server Review Board, consisting of members of the industry authorized by the supreme court.
Other jurisdictions require a court order allowing a private person to serve process. Many private investigators perform process serving duties. Texas and Florida also have a required training course which must be completed prior to certification.
An example of such a license would be in Rhode Island, where an applicant must complete 90 days of training with a constable that has 'full powers'. Once the 90 days of training is complete, a test is given at the local courthouse from the laws included in the constable manual. Once an applicant passed the written exam, one will be scheduled for an oral interview with the disciplinary board. If they find the applicant to be competent, they will pass a recommendation to the chief judge who will then swear in one with 'limited power'. These constables can only serve within the county they are appointed. After one year, a limited power constable can apply for his/her full powers to arrest, evict, and be able to serve statewide.
In New York State, personal process is required in divorce and similar matrimonial law actions, absent court permission. Specific practice is that: See CPLR 308 and DRL 232.