Service of process
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Service of process is the procedure employed to give legal notice to a person (defendant etc.) of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents to the person to be served.
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[edit] Service
Each jurisdiction has rules regarding the means of service of process. Typically, a summons and 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 abode 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. Service of process must be distinguished from service of subsequent documents (such as pleadings and motion papers) between the parties to litigation.
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. In ancient Persia, failure to respond to the King's summons meant a sentence of death. Today the penalty for ignoring a summons is usually a default money judgment that must be subsequently enforced.
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 [1].
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 countries 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.
[edit] Manner of Service
[edit] 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, personal service is required to prove service. In most Anglo-American legal systems the service of process is effectuated by a process server who must be an adult and (in most jurisdictions) not a party to the litigation.
Some 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 in New York City. Other jurisdictions, such as Georgia, require a court order allowing a private person to serve process. Many private investigators perform process serving as part of their duties.
In non-English speaking countries such as France, the Netherlands, Germany, Japan and China which follow the continental legal system based on the Napoleonic legal codes, service of process is performed by a huissier de justice (gerechtsdeurwaarder in Dutch), either in person or through the mail. In those countries there are two different types of service — signification and notification. The huissier is only responsible for signification, the more formal type of service 1.
[edit] 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 such as cohabiting adults or an employer. California law requires in addition that service documents be mailed to the recipient. Substituted service often requires a serving party show that ordinary service is impracticable and that substituted service will reach the party and effect notice.
In addition, substituted service may be effected through public notice followed by sending the documents by Certified Mail.
[edit] 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 country of destination has filed objections to service by mail pursuant to the multinational Hague Service Convention.
[edit] Voluntary Acceptance of Service (United States)
As a substitute for personal service by a process server, many jurisdictions encourage voluntary acceptance of service. The summons and other documents are mailed to the party to be served, along with a request to sign and return a form of acceptance of service, or acknowledgement of service.
Acceptance of service means that the served party agrees to acknowledge receipt of the complaint or petition without the need to engage a process server. Failure to accept service voluntarily means that the party to be served will be liable for the cost of effecting formal service, even if the plaintiff's action is otherwise unsuccessful. In U.S. federal court, voluntary acceptance of service entitles the defendant to more time to file an answer.
[edit] 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 agent for acceptance of service or "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 law to have an agent for acceptance of service in each jurisdiction where they are active. The identity of the agent for service can usually be ascertained from company filings with appropriate state agencies.
[edit] References
- Note 1: (pdf) Handbook of the Hague Service Convention — explains the difference between signification and notification in legal systems based on the Napoleonic Code
