The Evolution of Serving Process During a Pandemic: A Guide for Lawyers, Paralegals and Law Firms
Even without the additional health concerns inflicted by the COVID-19 pandemic, personal service inherently poses certain challenges for process servers. The United States Federal Rules of Civil Procedure mandates that, in a legal suit, all defendants or responding parties must be notified via service of process. In order to verify proper legal documentation is successfully delivered, personal service is often seen as the ‘gold standard’.
In the throes of an unprecedented pandemic, it's essential to review how service of process continues to be handled during the pandemic, and what adaptations are being made to allow this important piece of the judicial process to continue with effectiveness and efficiency in jurisdictions across the U.S.
Why Are Process Servers So Important?
Personal service remains the most secure and provable method of delivering critical legal documents, even during a global pandemic. When an individual has any form of legal action taken against them, they are promised the right to appear in court, even if that court is now virtual. However, if that individual never receives the official legal documents, they’ve therefore been denied their constitutional right to due process--still fully enforced and applicable during a pandemic.
There are reasons why someone may not receive documentation delivered via a personal process server, pandemic or not. Each state has guidelines on how, and who can deliver process of service, allowing for service via certified mail, or even social media, which the state of Texas just adopted as law, under specific guidelines. Alternative methods of service are allowed, but in most cases the courts recognize personal service as the gold standard in ensuring defendants receive confidential legal documentation of the highest priority.
From the plaintiff’s side, legal jurisdiction cannot be established over an individual until they have undeniably been served with legal documents, yet another reason why personal service of process remains vital during COVID-19. If someone does not appear in court, and it cannot be proven that they ever received the necessary paperwork, the plaintiff can't request a default judgment against them.
How Courts Rule on Service of Process During COVID-19
Emma L Frank, of Wolf Greenfield wrote an informative article on this topic, and specifically how differently courts have interpreted service of process during COVID-19.
Given the nature of the current pandemic, it would seem logical for personal service to be seen as impractical, or perhaps even impossible. However, while the cases she describes all have similar motions for service, they have significantly different outcomes. Including these two examples from the article:
- COVID-19 Justifies Substituted Service: In OHVA, Inc. v. eProcessing Network LLC, 4-20-cv-01247 (S.D. Tex. Apr. 15, 2020, Order) before Chief Judge Rosenthal, the court granted the plaintiff's motion to serve the defendant by registered mail and/or by attaching a copy of the complaint to the defendant's doorway. The court specifically noted that “Plaintiff asserts to the Court that the manner of service ordered herein will be reasonably effective to give Defendant notice of the lawsuit.” The complaint was filed on April 8, 2020.
- COVID-19 Does Not Justify Substituted Service: In Aristors Licensing LLC v. Raptor Technologies LLC, 4-20-cv-01116 (S.D. Tex. Apr. 15, 2020, Order) before Judge Hughes, the court denied the plaintiff’s motion to serve the defendant by registered mail and/or by attaching a copy of the complaint to the defendant's doorway. The court did not provide any reasoning, and only ordered that the defendant needed to be served within the next fifteen days. The complaint was filed on March 30, 2020.
How Process Servers Have Adapted During COVID-19
Guidelines and regulations around service of process in the midst of the COVID-19 pandemic remain a state and local issue as “very few federal and state court orders related to COVID-19 have addressed service of process, and the ones that have addressed it neither discussed it in detail nor provided much guidance.” However, most social distancing and mask requirements remain in place across U.S. states. This is why most process servers, and specifically process servers with ABC Legal, continue to practice safe distancing procedures when delivering documents--enclosing paperwork in plastic covering, wearing protective gear such as gloves and masks and staying informed of local procedures and guidelines.
For plaintiffs needing to rely on serving process, due diligence should remain; as the options on how service of process can be delivered depends on where you have brought your case. Keep in mind the applicable statutes of limitation in regards to any deadlines due to continued pandemic closures, and for some states, recent natural disasters (wildfires, floods, hurricanes) have impacted if and how service may be delivered.
For defendants, “you should understand your obligations if more courts begin suggesting that plaintiffs request a waiver of service. If you are without good cause to refuse waiver, a court must, under Rule 4, impose the costs of serving you and reasonable expenses, including attorney’s fees, of any motions required to collect those expenses", as explained in the above-referenced article by Frank.
How does ABC Legal Continue to address Covid-19 and Personal Service?
To best accommodate the pandemic reality we’re all adapting to, ABC Legal continues to implement a COVID-19 Safe Service Procedure. We are continuing to provide process servers with a COVID-19 safe service training program and replenishable kits, including masks, gloves, hand sanitizers, wipes and plastic bags for sealing the documents during their 24-hour quarantine and delivery. Additionally, we re-wrote many features in our mobile app to accommodate new issues in the field related to the pandemic, further ensuring a successful process of service without sacrificing the safety of process servers and the communities they serve.
About ABC Legal Services
ABC Legal is the nation’s leading service of process and court filing company and is the official process server to the U.S. Department of Justice. Docketly is a subsidiary of ABC Legal, providing appearance counsel on a digital, custom-built platform that smoothly integrates with our applications and services. ABC Legal’s applications are cloud-based and compatible for use on desktop, browser, and smartphones. Our solutions and digital approach ensure process server partners, law firm customers, and their clients save valuable time and resources when serving legal notices safely and with maximum compliance, control, and transparency. ABC Legal is based in Seattle, WA, with more than 2,000 process servers throughout the U.S., as well as internationally in more than 75 countries. To learn more about ABC Legal, our solutions and subsidiary company Docketly, visit www.abclegal.com.