Process service refers to the procedure by which a party provides an appropriate notice of legal action to another party, administrative body or court. The notice enables the defendant to respond to the proceedings before a court, tribunal or another administrative body. The legal notice is furnished by the delivery of documents, known as process, to the party to be served.
Serving of process can only be done by a person who is above 18 years of age. The server must not be a party to the litigation. In some jurisdictions, process can only be served by a court official such as a marshal, constable, sheriff or bailiff. In other jurisdictions, process servers require training and take examinations. If they pass, they are awarded certificates identifying them as certified process servers. Here are several methods that are used to serve process.
Personal or individual process service involves the direct delivery of documents to the party named in the petition, complaint or summons. In the case of corporations or other business entities, personal service of process is achieved by serving the process to the registered agent of the business entity.
In most cases, the documents must be clearly visible to the defendant. If the defendant refuses to be served or runs away, the server is allowed to place the documents as close to the individual as possible. The service is then considered valid in the eyes of the law.
Personal service is the most reliable means of process service. It ensures compliance with the constitutional requirements and gives the defendant an opportunity to be heard.
This method is allowed by the court where the defendant is unavailable for personal service of process. It allows the server to leave the documents with a person of suitable age and discretion. The person may be a cohabitating teenager or an adult. Substituted service can only be done at the place of residence of the party to be served.
In some jurisdictions, substituted service must be accompanied by other means of service such as service by mail.
Service by Mail
In this method of service, the documents are delivered through a postal service. It is allowed where the defendant is outside the state or country. The Hague Service Convention governs international service of process by mail. Countries that do not allow service by mail have filed objections in the convention.
Service by Publication
Service by publications involves posting a summons or a petition in a newspaper or other publications. It is used in some jurisdiction to give constructive notice to a defendant who is in hiding or is unknown. It is only carried out when a judge allows it based on a sworn declaration that, after due diligence, the defendant cannot be located. It is mostly used in divorce cases where a spouse has gone missing.
Waiver of Service
In waiver of service or voluntary acceptance of service, the defendant voluntarily agrees to acknowledge receipt of the petition or complaint without the need to involve a process server. If a defendant refuses to accept service without a good reason, they may be held liable for the cost of individual process service.
Proper process service establishes personal jurisdiction of the court over the defendant. If the defendant fails to participate in the proceedings or ignores further pleadings, the administrative body, court or tribunal may find them in default. When a defendant is found in default, a relief is awarded to the petitioner, claimant or plaintiff. The defendant is allowed to contest the default in their home state.