Proper Service Of Process is Critical to Moving Your Lawsuit Forward

Alex E. George
ageorge@kmksc.com
(414) 962-5110

Filing a lawsuit starts a legal action, but proper service of process is essential for that action to continue forward. Whether the action arises from a contract dispute, unpaid accounts or any other matter, the progress of the case hinges upon the proper service of legal papers on the defendants, which is an essential step in invoking the jurisdiction of the court and getting the suit moving. However, the path to effectuating service is far from uniform, with each state imposing its own distinct set of rules and requirements. Being aware of these varying rules and requirements can often make or break the ability to obtain judgment in a timely and cost-effective manner.

Personal Service

The primary method of service, and the method most are familiar with, is personal service of the requisite documents upon the defendant or defendant’s registered agent. This method ensures direct communication and obviates concerns regarding notice. However, even personal service requirements and procedures can vary from state to state. For example, in Pennsylvania, personal service can only be completed by the sheriff (except in the city of Philadelphia). In other states, service can be completed by a number of authorized parties, generally including the sheriff, a private process server, or simply an individual over the age of 18 who is not a party to the action. Additionally, most jurisdictions allow for personal service on individuals (but not companies) through substitute service. In these instances, substitute service can be effectuated by serving the requisite documents upon an individual who resides with the defendant. However, it is important to be aware of the state-specific requirements for the age of the individual and nature of the individual’s relationship to the defendant in order to ensure proper substitute service.

Service by Registered or Certified Mail

When personal service cannot be effectuated, there may exist a number of alternative methods by which a party can still manage to serve the defendant. In some jurisdictions, such as Michigan, plaintiffs have the ability to serve via certified or registered mail. In short, service is effectuated when the requisite documents are mailed to the defendant and the mail receipt is returned signed, creating a presumption the defendant received and is aware of the legal proceedings. Though potentially convenient, this method is not available in all jurisdictions and is subject to stringent procedural requirements, necessitating attention to statutory detail.

Service by Posting

Alternatively, in other states such as Virginia, a party may have the ability to effectuate service by posting a copy of the documents to be served at the front door of the defendant’s place of residence or business. Similar to serving by certified mail, this method often has strict requirements to prove service has been accomplished correctly, and failing to adhere to the requirements could lead to the court deeming service to be improper. Additionally, this option is not available in many jurisdictions, and for that reason it is often overlooked by non-resident plaintiffs unfamiliar with local rules.

Service Through Secretary of State

When the defendant is a registered business entity, a party may be able to serve the defendant alternatively by serving documents through the Secretary of State. In states such as Texas, if the registered agent of an entity cannot be located for service after due diligence, then service can be effectuated by providing copies of the documents needing to be served to the Secretary of State. In some states, the Secretary of State then proceeds to attempt to mail the documents to the business. This process again involves an adherence to a strict statutory procedure and, in some states, can only be attempted with the permission of the court.

Service by Publication

In instances where other methods have been unsuccessful, service by publication emerges in some jurisdictions as a recourse of last resort. In states such as Wisconsin, service by publication is only available once efforts to effectuate personal service have been exhausted. When serving by publication, a notice of the lawsuit is disseminated through designated publications, facilitating constructive notice of the legal proceedings. Again, the efficacy of this service method depends on a thorough understanding and adherence to the statutorily detailed requirements.

Methods other than personal service generally require careful documentation of attempts to serve personally before alternative methods can be employed. These records should be kept meticulously to ensure that any questions the court may have can be swiftly and satisfactorily answered.

Defendants in Multiple States

When dealing with claims across multiple jurisdictions, the importance of proficiently navigating the terrain of service methods cannot be overstated. Failure to conform to prescribed protocols can engender a litany of repercussions, ranging from procedural delays and additional costs incurred to fatal defects culminating in dismissal or adverse judgments. Understanding the methods available from state to state, and the requirements for each, requires experienced counsel who are not just aware of but familiar with all potential avenues of effectuating service and moving a claim towards judgment and, ultimately, collection.

KMK has substantial experience pursuing defendants across the U.S. and abroad, and provides a one-stop shop to many of our clients for their legal proceedings, including for the recovery of their accounts across the country and internationally. If you have any questions on proper service of process, would like a review of the procedures you have in place to serve defendants in various jurisdictions, or would like to set up KMK as your vendor for business debt collection, please contact KMK Attorneys Darrell R. Zall (dzall@kmksc.com) or Alex E. George (ageorge@kmksc.com). Both can be reached at (414) 962-5110.