LEGAL GUIDE
Written by Avvo Staff | Jan 19, 2016

How to serve someone with a lawsuit

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When you file a lawsuit, you must properly notify the defendant of the lawsuit by serving them with the summons and complaint. If the plaintiff does not do so, the court could dismiss the lawsuit.

What must I do once I have filed a lawsuit?

If you are the person who filed the lawsuit, you are called the plaintiff, and the person who you filed the lawsuit against is the defendant. Once you file a lawsuit against the defendant, you must notify him or her. This is called service of process. Service of process requires that you deliver a copy of the summons and complaint directly to the defendant within a certain time of filing the lawsuit with the court.

The purpose of service of process is to allow the defendant to know about the allegations against him or her, and to be able to appear in court to defend him or herself.

What is a summons?

A summons is a document that officially notifies the defendant of a civil case brought against him or her. The summons usually includes information such as the name of the case, the case number, the time frame in which the defendant must answer the complaint, the location of the lawsuit, and information about the plaintiff’s attorney.

What is a complaint?

A complaint is the formal pleading, or document that contains what the plaintiff alleges against the defendant. The complaint initiates the lawsuit and informs the defendant of the basis on which he or she is being sued. The complaint usually must also include what relief the plaintiff believes he or she is entitled to from the defendant, reasons that the plaintiff is entitled to such relief, and a demand for judgment by the court.

How do I legally serve someone?

The rules about the proper service of process vary by state. In general, the plaintiff must serve the summons and complaint on the defendant within a certain time frame, usually within 90-120 days of filing the lawsuit with the court.

The plaintiff must serve the papers on the defendant in person, directly to the defendant, rather than by mail or by simply leaving it at the defendant’s home or work. You must serve each defendant if you are suing more than one, even if the defendants each live or work at the same address.

Can I serve the defendant by mail?

Some states allow service of process by certified or registered mail with a return receipt requested. Some states may even allow service by first class mail. Most states that allow service by mail require you to first make reasonable efforts to serve the defendant in person.

If you make reasonable efforts to personally serve the defendant, some states could allow you to serve by what is commonly known as “nail and mail” service. This is where you can tack on a copy of the summons and complaint to the defendant’s door, and subsequently mail a copy to the defendant on the same day.

Do I have to prove that I notified the defendant of the lawsuit?

Courts require proof of service. Certified or registered mail is usually sufficient to show proof of service, otherwise you may have to fill out a proof of service form, or an affidavit declaring that you served notice.

What if the defendant is a business or government entity?

If you are suing a business, such as a corporation, or a government entity, the laws usually specify who you can serve process to. Under most laws about service of process, you must serve process on a registered agent as designated by the business or government entity.

Who can serve the defendant?

Generally, law officers such as sheriffs, marshals, and constables can be process servers, and will usually charge a small fee. You may also consider hiring a private process server. Otherwise, a “disinterested adult” must serve process. A disinterested adult is someone who is at least 18 years old but who is not the person filing the lawsuit. Sometimes states require that the court approve the process server first.

What happens if I do not serve the defendant?

Not only would the defendant likely not know to show up to court to defend him or herself, the court could decide to dismiss the case altogether. However, the court may allow you to bring the lawsuit at a later date. If you serve process outside of the time frame, the court will dismiss the case. However, you can usually file a motion for more time, if you give the court sufficient reasons as to why you could not serve the defendant.

What happens if I improperly serve the defendant?

If you are unable to serve the defendant because they are unreachable, courts will usually allow you to serve the defendant publicly, such as by giving notice in a newspaper. Sometimes courts will allow you to serve the defendant through an agent of the defendant. If a defendant refuses service, generally leaving the summons and complaint with the defendant is sufficient to complete service.

If the court is not satisfied with the way in which you served process, the court could decide not to hear your case. The court could also decide to continue your case until service of process is properly made.

How do I know which service of process rules to follow?

Rules about service of process depend on who the defendant is, where the defendant and plaintiff live, the nature of the lawsuit, and even where the events of the lawsuit occurred. Be sure to check with a local civil litigation attorney to be sure which rules apply to your case.

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