Serving the Summons
One of the first things that needs to happen in a lawsuit is delivery of a summons or similar document to the defendant. There are very strict rules about how this must be done and failure to satisfy those rules may mean that the entire lawsuit is thrown out.
Why should you continue to read this post about service of process:
You got a complaint in the mail or by email and you want to know if it could be legally effective.
Someone is trying to sue you and you want to know what to expect when the lawsuit starts.
You would like to see a picture of a mail truck and just imagine a calm day, delivering the mail to friendly people in a peaceful suburb.
Service is Generally Made in Person
Rules such as Federal Rule of Civil Procedure 4(c) set forth how a summons must be served. And for lawsuits against people, the simplest way to serve a defendant is to hand deliver the summons to them. Because there are rules about how this can be done (for example, the delivery person usually must be over eighteen years old, not be a party to the lawsuit, and not make the delivery on a Sunday), people often hire professional process servers who are familiar with the rules to make these deliveries.
But most rules for service of process provide some alternative means besides personal delivery. Many allow service by delivering a complaint to the defendant’s home or business and leaving it with an adult and through other means. New York’s CPLR 308(4) allows a plaintiff who has been unable to serve a defendant personally to serve a summons by affixing it to the door of the defendant’s home and then mailing it to them, too.
Defendants Can Designate Agents to Accept Service or Waive Formal Service Rules
Although a plaintiff is required to follow formal rules for serving a complaint, a defendant may waive this requirement and accept service by any means she wishes. Often defendants may do this in a contract or informally by email. Further, some rules, like Federal Rule of Civil Procedure 4(d)(2), may make a defendant liable for the costs of a process server if she does not waive the service rules.
Corporate defendants may automatically designate the state government its agent for service of process (or may affirmatively designate some third party to be an agent). In those cases, plaintiffs often may properly serve a defendant by delivering or mailing a complaint to the agent instead of to the company itself.
Different Rules Apply for Evasive Defendants or Defendants Abroad
Courts may modify service rules for defendants who cannot be easily served. If a plaintiff can explain how she tried to properly serve a defendant, but failed, she may ask the court to permit service through alternate means. After receiving these requests, courts have allowed plaintiffs to serve defendants by email and even by Facebook message.
When a plaintiff wants to serve a summons on a defendant who is outside of the United States, different rules apply. Federal Rule of Civil Procedure 4(m), for example, allows a plaintiff to serve a summons in compliance with the rules of the country where the defendant is found. It also allows the plaintiff to serve the defendant in compliance with the rules of international treaties, such as the Hague Service Convention, if the defendant is in country that signed that treaty. Under the rules of that treaty (which vary by country), a defendant may be served by mail or through a designated office that handles requests for international delivery of summonses. For this reason, it may be easier to serve a defendant abroad by mail than to serve a local defendant, where personal delivery may be required.
