You probably have some grasp of what constitutes service of process. You know that legal documents must be delivered to the party named in a lawsuit filed with the court. But what happens after a person has been served? What’s stopping a defendant from claiming that they never received the documents?
That’s where a proof of service comes into play. Proof of service is a document that functions like a legal “receipt” confirming the delivery of documents from one party to another in a legal matter. It is a written version of a sworn statement attesting to the completion of service of process. It's sometimes referred to as a return of service or, when notarized, an affidavit of service. The document presented for filing must contain either an acknowledgment of service by the person served or a certificate/declaration of service prepared by the person who performed service.
What Types of Information Does A Proof of Service Contain?
In most instances, the proof of service will be completed by the process server who has delivered the necessary legal documents to the defendant. This process server will typically provide the following:
- The name of the person who was served
- The date, place, and time where service was carried out
- How the person was served
- A description of the type of documents that were delivered to the defendant
- Their name and signature
What Happens When Personal Service Isn’t Possible?
A process server should make every effort to render personal service. That is, to ensure that the documents are placed directly in the hands of the party being served. Doing so makes any challenges to consent to service of process nearly impossible. In some states, when personal service isn’t possible, the process server may be able to leave the documents with a person of appropriate age at the defendant’s place of residence, or, in limited cases, at the servee’s place of work. This is known as substituted service. It’s important to note that the rules for proper substituted service vary by location. Some states set a minimum age for who may receive service on behalf of a defendant. Others do not allow it at all or require the court's permission for substituted service.
Sometimes, personal or substituted service just isn’t possible. In these instances, service by publication may be an option. Service by publication, as you can probably gather, is service by a complaint being published in a newspaper. Court approval is often required in order for any service by publication to be valid. Rather than a return of service affidavit serving as the proof process servers need to show that process was served, the process server would instead file an affidavit of publication as well as any other court requirements around service by publication.
What Happens When Proper Service of Process Becomes Difficult?
Sometimes, process servers face challenges locating defendants, particularly if someone has moved. These situations are difficult for both the process server and the plaintiff in the case. Without the delivery of the legal documents, the case cannot move forward.
Should a process server be unable to deliver the legal documents as outlined by the court, they will still need to file a signed declaration with the court where the complaint was filed stating that they made a good faith effort to deliver the required documents to the defendant. This document takes the form of a declaration of non-service, also referred to as a proof of non-service, return of non-service or, when notarized, an affidavit of non-service.
Of course, the process server cannot simply make such a declaration and be taken at their word alone. The server must also provide detailed information of all attempts to serve the documents. This information is necessary in case there is a challenge as to whether proper service of process was ever performed. It is well-established case law that an affidavit of non-service may be used to show that every effort was made to deliver legal documents to the defendant.
As Always, Deadlines Matter
At law firms, deadlines are treated with the utmost importance. After all, a late filing can torpedo an entire case. Filing proofs of service are often subject to unique time constraints. Failing to file the form correctly and on time can have major implications for the plaintiff’s case. For example, in New York, cases involving landlord-tenant law must have proof of service filed within three days of service of process. Other states and areas of law are regulated by different deadlines.
It’s important to note that the countdown for a defendant to respond to a lawsuit in cases involving substituted service may not begin until the affidavit of service has been filed. A process server should provide proof of service of process as soon as possible. When law firms work with a reputable vendor such as ABC Legal, they can be assured that all associated service of process rules and regulations will be properly followed.
Discover How ABC Legal Can Help with Your Service of Process Needs
When dealing with strict regulations, tight deadlines, and proof that needs to hold up in court, you need process servers you can trust to get the job done right. Law firms that work with ABC Legal can count on getting some of the highest quality proofs of service in the industry. ABC Legal uses technology to reinforce service of process, validating that proper service of process was carried out. With photos, GPS tagging, time stamps, and automation built for process servers, ABC Legal supports the creation of proofs with rock-solid evidence. At ABC Legal, our established reputation and deep roster of highly vetted process servers helps law firms deliver legal documents across the country and around the world. To learn more, request a demo with us today.
Written byTodd Harrison