Service of Process

Service of process is an essential step in commencing a civil lawsuit. In fact, service of process is so essential in a lawsuit that, if it is not performed properly, a lawsuit cannot proceed. Service of process is critical because it establishes that the court hearing the lawsuit has jurisdiction over the defendant. (Jurisdiction, as described in an earlier chapter, is a court’s ability to hear a controversy involving two or more parties. A court has jurisdiction because these parties have some connection to the court, whether it is because they are citizens of the state where the court sits or because the state in which the courts sits is the site of the plaintiff's injury.) Service of process is also important because it notifies the defendant that the plaintiff is bringing a lawsuit and that the courts will hear the impending lawsuit. Therefore, it is important to understand service of process and its place in a lawsuit. See O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir., 2003):

“Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties.”

Service of process is the method by which documents are delivered to other parties in the lawsuit as well as to the court. It occurs at the commencement of a lawsuit, when the plaintiff, or the party bringing the lawsuit, serves the complaint and summons on the defendant.

The rules discussed in this subchapter are the rules that address the requirements and procedures for obtaining and effecting proper service of process. Rule 4 of the Federal Rules of Civil Procedure deals with service of process and is composed of several subsections that identify the different issues that may arise relevant to the service.

Under the federal rules, any person who is not a party to the lawsuit and is at least 18 years of age can effect proper service. See Combs v. Nick Garin Trucking, 825 F.2d 437, 443, (D.C. Cir. 1987). Alternatively, the plaintiff may request that a representative from the United States Marshall’s office carry out service. Service is usually effected by a process server who is familiar with the Rule 4 requirements as well as any applicable local rules. Here is an example:

Paula was injured in a car accident that took place on August 1, 2013. David was driving the other car when he fell asleep at the wheel and collided with Paula. Paula sued David for negligence. Paula filed her summons and complaint with the district court on September 15, 2013. On September 20, Paula had her next-door neighbor Ned, a 21 year-old college student, bring a copy of the summons and complaint to David at his home. Did Paula properly serve process on David?

The answer to the above example is that Paula properly served David with process. Ned was over 18 years in age and was a nonparty to the lawsuit. Therefore, service of process was successfully completed.

The method of service is largely dependent on the type of defendant that is identified in the lawsuit. An individual within the United States can be served process by any one of three different methods. First, an individual can be served according to the service of process laws of the state where the court is located or according to the laws of the state where the individual who is being served is located. Second, the individual can be served by delivering a copy of the complaint and summons to the person individually (also known as “personal service”), or by leaving it at the individual’s dwelling or usual place of residence with a person of “suitable age and discretion”. Third, an individual can be served by delivering a copy of the summons and complaint to an agent, or person who has been authorized by the individual to receive service of process on his or her behalf. For example:

EXAMPLE (1): Sarah, a resident of Boston, Massachusetts, was driving along the New Jersey Turnpike when a truck struck her car. Bill, a resident of New Jersey, privately owns the truck. The accident caused the destruction of Sarah’s car, with estimated repairs costing over $50,000. In addition, Sarah was severely injured by the accident, and spent over $50,000 in medical expenses. Sarah brings a lawsuit in federal court in Boston on September 1, 2003. She hires a process server, who serves the complaint and summons on Bill on September 20, 2013, by delivering the summons and complaint to Bill at his home in Princeton, New Jersey. New Jersey law permits service of process on the individual at their home or place of business. Massachusetts’s law permits the service of process on the individual only at their home. Is service of process proper?

In the above example, service of process is proper under both Massachusetts and New Jersey service of process laws. Both state laws permit service of process on individuals at their homes. Therefore, Sarah properly served Bill with process to commence the lawsuit. This is an example of service upon an individual.

EXAMPLE (2): Same facts as above, except that when Ned went to Bill’s home, he was not there. In fact, he was at work. New Jersey law permits service of process by leaving a copy of the complaint and summons attached to the door of a defendant. Massachusetts's law, however, does not allow for this type of service. Is service of process proper?

In the above example, service of process is proper under New Jersey’s service of process law. The New Jersey law allows for service to be affixed to the defendant’s home. Therefore, service was proper. See Silvious v. Pharaon, 54 F.3d 697, 701 (11th Cir., 1995).

Service of process rules also exist for corporations and associations. These rules apply also to companies, partnerships, and nonprofit organizations. Under the federal rules, a corporation may be served using the rules of the judicial district where the court is located as well as the judicial district where the corporation is located. Usually, a corporation’s location is determined by where the corporation’s principal place of business is. Alternatively, a corporation’s location may be dictated by the state under whose laws it is incorporated, which are the laws that created and govern the operation of the corporation. Since the corporation is not a person, it is necessary to identify the proper individuals within the corporation that can officially receive process. Subsection (h) of Rule 4 states that any officer, managing or general agent, or any other agent authorized to receive process by law or by the corporation’s appointment, may properly receive service. If the state law permits, the corporation may also be served by mailing a copy to its offices. If the corporation is a foreign corporation, meaning that the corporation is organized under the laws of a foreign country, it may be served according to the permissible methods that apply to individuals from a foreign country, as described below. For example:

EXAMPLE (3): John, a resident of Cincinnati, Ohio, was injured when his lawn mower malfunctioned. Greener Pastures, Inc., a corporation organized under the laws of Delaware, manufactured the lawnmower. John brings a lawsuit in federal court in Ohio, and has a process server bring the papers to Greener Pastures, Inc.’s office in Wilmington, Delaware. The process server enters the mailroom and serves the complaint and summons on Johnny, a mailroom clerk. Both states follow the service of process rules found in the Federal Rules of Civil Procedure. Was service of process proper?

In the above example, service of process was improper. While Johnny is an employee of Greener Pastures, Inc., he is not an authorized agent, officer, or managing or general agent. The intent of this requirement is to allow the corporation’s management to know if they are named as defendants in a lawsuit. It is not expected that anyone in Johnny’s position would report the lawsuit in an expedient manner to the upper levels of management where corporate decisions are made. By requiring service of process to be made on management level officers or agents who are appointed and instructed to report to management in the event of a lawsuit, the rules assure that the corporation will be given prompt notice and opportunity to prepare its response to the complaint as well as appear in court.

EXAMPLE (4): Carl, a resident of Atlanta, Georgia, is injured in a car accident when his car brakes fail. Carl sues Larry, President of Autoworks, Inc., a corporation based in Albany, New York, and the corporation Autoworks, Inc., itself. Carl brings a lawsuit in federal court in Atlanta, Georgia. Carl hires Joe, a process server, to go to Larry’s office in Albany to serve the summons and complaint. When Joe arrives at Autoworks, Inc., he finds that Larry is on business in California. However, Paul, vice-president of Autoworks, Inc., is present in the office. Joe serves Paul with the summons and complaint. Assume that both Georgia and New York follow the service of process rules found in the Federal Rules of Civil Procedure. Was service of process proper?

In the above example, service of process was proper. Paul is vice-president of Autoworks, Inc., which makes him an officer of the corporation. Therefore, Carl successfully served process on Autoworks, Inc.

Other procedural requirements exist for other types of parties, such as infants and incompetents. The law considers infants and incompetents as parties who lack the legal capability to make competent decisions regarding civil actions. Infants generally include all children who are under the age of 18 years old. An incompetent individual is a person who suffers from a condition that makes him or her incapable of making competent decisions, e.g., a person in a comatose state or a person with a severe mental illness. The courts will frequently appoint a legal guardian for these parties if they are named in a lawsuit, to make legal decisions for them. Here is an example:

On September 1, 2013, Paul was driving his SUV on Main Street. Daniel, who was crossing Main Street on his motorcycle, struck Paul. Paul was not severely injured. Paul’s complaint raised the issue of Daniel’s negligence in causing the accident. However, Daniel suffered serious head injuries and lapsed into a prolonged coma and could not respond.

In the above example, it would be unfair to Daniel for him to be found liable for the accident without an opportunity to defend himself against Paul’s lawsuit. A court or family member may appoint a guardian to represent Daniel’s interest in the lawsuit until he can participate.

Special procedures also exist for service on individuals and corporations in foreign nations as well as foreign governments. These parties may have an interest in having their own laws apply rather than the laws of the United States. Therefore, under the federal rules, the laws must take into account any international agreements between the United States and the foreign nation (or lack thereof) establishing a procedure for serving process on these parties and the laws native to these nations for serving process. It is important to conduct thorough legal research in cases that involve foreign nations or individuals in foreign nations to identify the rules of the foreign jurisdiction.

Additionally, the federal rules set forth special procedures for filing lawsuits against the federal government, federal agencies, or federal officers. See Bradley v. U.S., 866 F.2d 120, 127 (5th Cir. 1989).

For service of process upon the federal government, the plaintiff must send a copy of the summons and complaint to the U.S. attorney in the district where the lawsuit is filed. Alternatively, the plaintiff can send a copy of the summons and complaint to the assistant U.S. attorney or clerical employee designated to receive service. In addition, the plaintiff must send a copy of the summons and complaint to the Attorney General of the United States in Washington, D.C. If the lawsuit is in response to a decision made by a federal officer or agency that is not named in the lawsuit, the plaintiff must also send a copy of the summons and complaint to that officer or agency.

For service of process upon a federal agency or organization or its officers in their official capacities, the same requirements as above apply. Alternatively, the plaintiff may send a copy of the summons and complaint by registered or certified mail to the officer or agency. Federal agencies and organizations includes the Environmental Protection Agency, the Federal Election Commission, and the Federal Labor Relations Authority. Officers acting in their official capacity may be the directors, commissioners, or management level officers making decisions in their official capacity. For example:

John Smith, a high level official within the Environmental Protection Agency, who is in charge of identifying sites for new nuclear-powered plants, released an official statement identifying the town of Brownsville, Texas as the next location for a plant. A local community group, Citizens for a Better Brownsville, filed a lawsuit naming John Smith in his official capacity as deputy director for the nuclear program and the Environmental Protection Agency as defendants, alleging that they failed to take into account the community’s strong opposition to the decision.

When an action (or inaction) of a federal official causes an injury, the victim often can sue that official in his or her official capacity or can sue the official in his or her individual (private) capacity. If the suit is against the official in his or her personal capacity, this means that he or she is being sued as an ordinary, private citizen, just as a person would sue any private person whose actions caused harm to him. The federal rules provide special procedures for the service of process on federal officials being sued in their individual capacities for incidents that happened while they were working in official capacities. If the suit is against an official in his official capacity, the rules for service upon the federal government apply. FRCP Rule 4(e).

In the event that service of process is not properly performed against the federal government or one of its agencies or officers, the plaintiff has an opportunity to fix or “cure” the defect in service. In these situations, the plaintiff has a “reasonable time” in which to fulfill the service requirements. Reasonable time is an undefined term that implies that the court will use its discretion to determine whether the error was attended to in a reasonable and timely manner.

Another issue that may arise when dealing with service of process is waiver of service. Subsection (d) of FRCP Rule 4 allows the plaintiff to request a waiver of service of process from the defendant. See Farm Credit Bank of Baltimore v. Ferrera-Goitia, 316 F.3d 62, 68 (1st Cir. 2003). When a defendant agrees to waive service, he or she agrees to waive the formalities of service. To obtain a waiver, the plaintiff is required to send two copies of the summons and complaint and a request to waive formal service of the summons and complaint. A defendant who agrees to waive service must return the waiver agreement to the plaintiff. If the defendant fails to comply with a request to waive service or refuses to waive service without good cause, the defendant will be required to pay all of the plaintiff’s costs associated with completing service, which include the process server’s fee and reasonable attorneys’ fees associated with effecting the service. The defendant does receive a benefit for waiving service: he or she is given 60 days, rather than 20 days given under normal rules, to serve his or her answer. Therefore, the defendant would have extra time to prepare the response to the plaintiff’s complaint.

Subsection (l) of Rule 4 also requires that proof of service be provided to the court. In the event that the defendant does not waive service of process, the plaintiff must file proof of service with the court. If the plaintiff engages a process server or a United States marshal to serve the defendant, the process server or marshal must sign an affidavit establishing that he has completed service in accordance with the Rule 4 requirements. The plaintiff would file this affidavit with the court hearing the lawsuit. However, it is not a defect in service of process if the plaintiff does not file proof of service. In other words, failure to provide proof of service will not prevent the lawsuit from going forward. The court will often give the plaintiff ample time to properly file proof of service.

Service of process of the complaint and summons must be made by the plaintiff within the time allotted under subsection (m) of Rule 4. This subpart states that the plaintiff must complete service upon the defendant within 120 days after the filing of the complaint with the court. If there are multiple defendants in the lawsuit, the appropriate number of copies of the complaint and summons must be filed with each defendant. This subsection also notes that if the plaintiff fails to provide service within this 120-day period, the defendant may move (make a motion) to have the complaint dismissed for improper service. Alternatively, the court may also make its own decision to dismiss the case.

Proper service of process is required for a variety of reasons. As explained earlier in this subchapter, service of process identifies that the court hearing the lawsuit has jurisdiction over the controversy and the parties. It serves to provide parties with notice of a lawsuit. Another important reason it is vital is because it “tolls” or freezes the statute of limitations. Tolling the statute of limitations eliminates the possibility that time would run out while the plaintiff brings his or her lawsuit. If service is not properly performed, the statute of limitations is not tolled. Therefore, the statute of limitations would continue to run and may lapse. If the statute of limitations lapses before proper service can be made, the plaintiff is stopped from bringing his or her lawsuit.

A question that can arise in actions that are in federal court because of diversity of citizenship, is how to determine whether to apply the statute of limitations of the state in which the court sits or to apply some other, such as any applicable federal, statute of limitations. Because statutes of limitations are generally considered to be substantive, rather than procedural issues, according to the choice of law rules, the statute of limitations is determined by state law rather than federal law. There also may be conflicting state laws regarding the statute of limitations that may be applicable to the case. Again, since statutes of limitations are generally considered to be substantive law, the conflicts of laws rules discussed last chapter would apply. For example:

Zoey, a resident of New Jersey, entered into a contract on August 1, 2002 with Otto, a resident of Connecticut, for the purchase of ten air conditioners manufactured by Otto’s company, AirLite, Inc. Zoey ordered ten of Otto’s premier air conditioner units, Ultra Cool, to be delivered to her home by August 15. However, Zoey noticed that none of the air conditioner units had arrived by September 1. Zoey wanted to sue Otto for damages resulting from his breach of contract, a lawsuit amounting to over $80,000. Zoey brought the lawsuit on July 1, 2013 in federal district court in Trenton, New Jersey. Assume that the New Jersey statute of limitations for contract disputes is 1 year, while the Connecticut statute of limitations for contract disputes is nine months.

In the above example, it is clear that if the federal court applies the New Jersey’s statute of limitations, Zoey still has time to bring her lawsuit. The statute of limitations has not lapsed yet. However, if the federal court applies Connecticut’s statute of limitations, the statute of limitations would have lapsed and Zoey could not bring her lawsuit. Therefore it is important in diversity cases and other situations where there may be a conflict in the statute of limitations of different jurisdictions to evaluate the choice of law rules of the presiding court and determine whether the lawsuit may be barred.