What Exactly Can a Process Server Do to Serve Papers?
When a lawsuit is filed, process servers complete an important duty by ensuring that all other parties to the suit receive timely notice and that legal action is pending against them. But what is a process server actually allowed to do in contrast to what they’re not allowed to do? Let’s take a closer look at this topic, but first a refresher course.
If the Process Server Can’t Find You, You’re Not Off the Hook
Some people are under the impression that if they simply avoid the process server or don’t physically touch the papers, that they haven’t been properly served; therefore the lawsuit cannot proceed.
This is simply inaccurate.
The courts are very familiar with evasive maneuvers and have enacted provisions to deal with avoidant parties, such as substituted service.
Each state has their own, very specific, laws about what a process server is and is not allowed to do when properly serving an individual. Good process servers are intimately familiar with their state’s individual statutes. But then again, so too are bad process servers. The bad ones just choose to ignore, or perhaps bend, the rules at times.
What Process Servers Can Do
Let’s take a look at the ways the law allows you to be served papers.
1. Getting Creative
When a person won’t answer the door, what can a process server do? Most experienced summons servers try to get creative. They may stake out the person’s residence, wait outside their workplace, or frequent extended family’s homes in order to get the opportunity to approach the party.
As long as they’re not stalking or harassing the person, this is perfectly legal.
2. Mailing You Court Papers
When personal service has failed, a process server can go to the judge and ask for permission to use substituted service. This can take various forms, but every state has some type of statute which allows service by mail. Details and requirements vary from state to state; some require the summons to be sent via certified mail, while others will suffice with regular first-class mail.
Some states may require a process server to file an affidavit stating that they exercised due diligence in trying to locate and personally serve the person. Process servers know their state’s laws and able to advise clientele on the next steps when it seems impossible to physically locate a party.
3. Leaving Papers with Someone 18 or Over
Many states allow a form of substituted service in which the summons can be left with a competent adult at the residence. The goal is to give the papers to someone who understands the importance and significance of the papers, so that the party receiving the summons cannot claim they didn’t actually receive it.
What Process Servers Can’t Do
Now that we know what’s acceptable, let’s take a look at what process servers are not allowed to do.
1. Going Through Your Mailbox
Although legal opinion on this varies, it is generally considered illegal to open a person’s mailbox to see if they’re receiving mail at their address. The U.S. Postal Service wants to protect the integrity of their customer’s mailboxes, so they require that only U.S. Postal Service employees place into or remove items from the box. There is debate concerning whether it’s legal for a process server to simply open the mailbox and look at what is in plain view; however, this is a gray line often determined by the state you live in. Your process server should be familiar with the laws of your state.
2. Engaging in Deception
Process servers can’t lie about who they are and what they’re trying to do, especially by posing as law enforcement. Some law enforcement officers are also process servers, but being a process server is not a law enforcement job in and of itself.
While they can be general about who they are, they cannot serve papers or gain access to a person under false pretenses and must follow all state and federal laws.
Since process servers are required to follow all state and federal laws, just like any other regular citizen, it means they’re not allowed to trespass on private property. As mentioned above, they can track you down, wait outside your home, office, or anywhere else they reasonably believe you could be, but they cannot trespass. The definition of trespass may vary from state to state; check your local laws.
4. Breaking & Entering
Process servers are not allowed to break-in and/or enter a private property without permission in order to serve papers to a person. Again, they are required to follow all state and federal laws, even if they’re serving papers as part of a law enforcement job.
5. Using Force
A process server cannot physically force you in any way to take papers from them. However, this doesn’t mean that just because you didn’t touch the papers you haven’t been served. It can be as simple as approaching you and saying, “John Smith, you have been served,” and dropping the papers at your feet if you won’t physically take them.
What Happens if You Avoid the Process Server?
Remember, this tactic will not make your legal matters magically disappear. You will be fined, your hearing will go on, your case will not be postponed for not having been properly served. Instead, the following tactics are what you can expect.
1. Substituted Service
When a process server has exercised due diligence in tracking a party down for legal service, but still has been unable to hand the papers over, there are provisions called “substituted service.” These options can range from serving the person through postal mail, handing the summons to a competent adult at the residence, attaching a copy of the summons to the residence’s front door, and even taking an ad out in the newspaper.
All of which tell a judge that the appropriate number of attempts to serve you papers have been made and after exhausting substituted services, you should be well aware of the legal matters you face.
Substituted services vary widely by state. For example, process servers in Wisconsin and New York are permitted to use substituted services after just two calls in which the defendant is not found. Whereas California allows for substitute tactics after three attempts to contact and Oregon after one attempt to contact and one mailed notice.
2. Default Judgments
If you simply avoid the process server, the mail, the newspaper, and any other legal means of reaching you, you’ll still be assumed to have been notified that legal action or even a lawsuit is pending against you. At this point, if you don’t file an answer and show up to court, a default judgment can, and likely will, be rendered against you. This can result in wage and bank account garnishments or even jail time depending on the severity of the matter.
As you can see, it’s best to receive your summons and consult with an attorney about how to best respond to the summons. You may be able to dodge a summons for a while, but eventually the case will catch up to you. So take you summons, read it over, and if need be, contact a lawyer to advise you on how to proceed.