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Service of legal process:

The procedure by which a party to a lawsuit gives an appropriate/legal notice of starting legal action to another party (such as a respondant/defendant), court, or administrative body in an attempt to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.

Notice is furnished by delivering a set of court documents (called "process") to the person to be served.



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Each Court 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 his or her home state. Service of process must be distinguished from service of subsequent documents (such as pleadings and motion papers) between the parties to 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 (i.e. family, small claims, criminal, etc.).

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Service on a defendant who resides in a country outside the jurisdiction of the 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 countriepss and some other countries is effected through the letter rogatory process. Where a defendant's whereabouts are unknown, the Court may permit service by publication, usually in a newspaper.

In the past, in many countries, people did not have the right to know that there were legal proceedings against them. In some cases, they would only find out when magistrates showed up with the sheriff and seized their property, sometimes throwing them into debtor's prison until their debts were paid. The Fifth and Fourteenth Amendments to the United States Constitution prohibit the federal and state governments from depriving any person of life, liberty or property without due process of law. Therefore, the process server is "serving" the recipient with notice of their constitutional right to due process of the law.

In ancient times, the service of a summons was considered a royal act that had serious consequences. It was a summons to come to the King's Court and to respond to the demand of a loyal subject.[citation needed] In ancient Persia, failure to respond to the King's summons meant a sentence of death.[citation needed] Today the penalty for ignoring a summons may be entry of a default money judgment that can subsequently be enforced.

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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 (as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence" (trying hard).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.

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In divorce cases, most states that permit service by publication will require "due diligence" to locate the missing spouse to 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 his or her 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.

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 the [California Department of Motor Vehicles] with a mailing address shall … consent to receive 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 Federal Rule of Civil Procedure 4(d)(2), when a defendant refuses to waive service "without good cause", the defendant can be held liable for the cost of personal service.

However, in general, individual service by a process server is the best way to effect service of process, as it completely avoids having to litigate the collateral issue of whether the defendant actually had good cause (or not) to not waive service.[citation needed]


Personal service by process server

Personal service is service of process directly to the (or a) party named on the summons, complaint, or petition. In most lawsuits in the United States, personal service is required to prove service.[citation needed] 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 (in hand) the documents to the "registered agent" of a business entity.[citation needed] 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.[citation needed] 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" (placed as close to the individual as possible); this is considered a valid service.[citation needed] In the U.S., personal service of process has been the hallmark for initiating litigation for nearly 100 years, primarily because it guarantees actual notice to a defendant of a legal action against him or her.

Agent for acceptance of service

In some instances, delivery to an agent for acceptance of service or "registered agent" can substitute for personal service on the principal party to be served. The Registered Agent is a person or company authorized in advance to accept service on behalf of the served party. For example, most corporations are required by local law to maintain a local agent of record for acceptance of service in each jurisdiction where they actively conduct business with the public. The identity of the agent for service can usually be ascertained by searching company filings with appropriate state corporate records or business registration agencies (often the business entity division of a state's secretary of state. Generally, these business registration records are searchable by the public on the Secretary of State's website.

In the UK an agent for acceptance of service is generally known as a process agent and is a contractual relationship rather than a statutory one.


Return of service

Once service of process has been effected, the responsible officer or process server must typically file a return of service or proof of service or "affidavit of service" with the court (or convey one to the plaintiff to file with the court). The return of service indicates the time and place at which service was effected, the person served, and any additional information needed to establish that service was properly made. It is signed by the process server, and operates as prima facie evidence that service of process was effectively made.

Arizona Court Rules also require that any return or affidavit of service filed by a process server other than a sheriff or constable shall clearly state the county in which the process server is registered. Many Arizona process servers include their Certification Number on their returns/affidavits. Certification Numbers are assigned by the Clerk of the Superior Court in each county.

In California, "Registered Process Servers" are granted "...a limited exemption against trespassing in gated communities." This allows servers to enter a private property for a reasonable period of time to attempt service of process. In California, gated communities which are "...staffed by a security guard, or where access is controlled, must allow a Registered Process Server to enter for service of process upon presenting valid identification, and indicating to which address the process server is going." This does not prevent the security guard from contacting the resident and alerting them that a process server is on his way to their residence. § 415.21 Access to gated communities.

(a) Notwithstanding any other provision of law, any person shall be granted access to a gated community ... for the purpose of performing lawful service of process, upon identifying to the guard the person or persons to be served, and upon displaying a current driver's license or other identification, and one of the follow: (1) a badge [applies to sheriffs and marshals] (2) evidence of current registration as a process server... '(b)This section shall only apply to a gated community which is staffed, at the time service of process is attempted, by a guard or other ... personnel assigned to control does not apply to a private residence that has posted no trespassing signs'

In Washington, "Registered Process Servers" are granted a limited exemption or affirmative defense against trespassing:

The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.

— RCW 9A.52.090 (4)


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