Many individuals have the misconception that your lawsuit begins when you file your lawsuit and accompanying paperwork with the courthouse. Doing this creates a case within your local judicial system, but the court does not grant you any judgment just because you filed a case. In fact, the court does not even consider whether the law entitles you to any judgment until after the other party has been served process.
Being served process is another way of saying being served with court papers. “Process” refers to a copy of your lawsuit and instructions for how to respond to that lawsuit that are given to the other party in your case by a process server or other legally authorized individual. Once the other party has been properly served with process, then the process of resolving your case begins in earnest.
In many situations, a party is served when they are personally handed a copy of the process by the person attempting to serve them. In other cases, residential service may be permissible and a person is served when a copy of the lawsuit is left at their residence with a suitable adult living there.
Some individuals who file a lawsuit may consider serving process as an afterthought. However, if the other party is never properly served, this can have significant repercussions on your case. Exactly what happens will depend on what efforts you have made to serve the other party and what, if anything, the other party has done to make service more difficult.
In today’s world when you can ship a package or a letter to anyone in the world in a matter of days, it may be difficult to imagine a scenario under which someone cannot be served with legal documents. However, unlike delivering a package, serving court papers on a person requires compliance with laws and local court rules. Simply leaving court papers on a doorstep is not an option.
In the vast majority of cases, the court will want to see that you have attempted to personally serve the defendant with court papers. This can be challenging for a number of reasons:
Beyond these reasons, the other party might deliberately avoid your process server, thereby making it difficult to serve them with court papers.
However, just because you have trouble in serving another party does not do away with their right to be informed of your lawsuit and given a chance to contest it.
So, what happens if you cannot find the other party to serve them with process? First, the court will likely require that you attempt one or more alternative forms of service on the other party. Every state has various options available for serving a party who is difficult to find personally. These alternative forms of service can include:
If a party cannot be served personally, you may be able to serve them at their residence. If you can find the principal residence of the other party, you can leave court papers with any adult over the age of 18 years who also resides at that residence. When this procedure is followed properly, the court will assume that the other party received notice of your lawsuit from the adult living at the residence to whom you gave the court papers.
A court might also allow you to serve a party with court papers by delivering them via certified mail. If this form of service is authorized by the court, you serve the other party by:
Serving another party via certified mail is risky in that you must have the other party’s last known address available to you. If you attempt to serve the party via certified mail at an address that is later determined to be an outdated address, the court may not accept your efforts as valid.
As a last resort, when all other efforts at serving the other party have failed, the court may permit you to serve the other party by publication. This means that you place a classified advertisement in your community’s paper as well as the paper of any other community ordered by the court. Your ad will run for several weeks, after which the paper’s publisher will file an affidavit attesting to how long your ad ran.
When serving a party by publication, you do not print a copy of your entire lawsuit. Instead, the notice is short and simply tells the other party that a lawsuit has been filed against them, the court in which the lawsuit was filed, and how long the other party has to respond.
Serving a party by publication is only effective when the notice is printed in the community’s paper of record. This is the newspaper that is designated as recognized by a community or court as being the one where legal notices can be published. In the digital age, some communities may have abandoned a paper “newspaper of record” and designated an electronic website as being the “paper of record.”
If you have made multiple and varied good faith attempts at serving the other party and you have not been able to serve them, the court may find that your attempt to serve them by publication sufficient. If the other party does not respond to the lawsuit and does not appear in court when they were notified to do so, the court can find the other party in default.
Being found in default means the court assumes the other party is not challenging any aspect of your lawsuit or the allegations in it. So long as your lawsuit is legally sufficient and complies with the applicable law, the court will enter judgment in your favor without any further action on your part.
A judgment granted because of the other party’s default can be difficult for that other party to later undo. That party would need to show the court that there is a valid and compelling reason why they did not respond to the lawsuit.
In attempting to serve the other party, you have a responsibility to follow your state’s laws. If you do not attempt to serve the other party properly, or attempt methods of service that the law does not permit you to use, the court will likely order that you attempt service again. Having to reattempt service of process because you have not followed the law can add to your expenses and will inevitably delay the resolution of your case.
There is a far more serious sanction the court can impose, though. If the court believes you are not diligently trying to serve the other party properly, the court could find that your case should be dismissed. In most cases, the dismissal will be without prejudice, meaning that you can refile your case.
However, suppose that you file your lawsuit within 60 days of your state’s statute of limitations. Ninety days pass, and you do not serve the other party by one valid method. Because of this, the court dismisses your case without prejudice. Under normal circumstances, you would be allowed to refile your case. However in this situation the statute of limitations has now expired. As a result, you may not be able to refile your case.
Serving the other party in your lawsuit is essential. The other party is entitled to receive notice of your lawsuit by one or more methods of service, even if they may be difficult to locate. Hiring a professional process server in your state can prove to be crucial to successfully serving the other party and getting your case started.
A process server who is familiar with your state’s laws and requirements can not only attempt to serve the other party personally. However, when that does not prove successful, your process server can move on to other approved methods of service. Your process server’s diligent attempts can also keep your case from being unnecessarily delayed or dismissed.