Process Server Standards Archives - Page 2 of 3 - DGR Legal

Can You Serve Someone In Prison?

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serve someone in prisonCan you serve someone in prison? Many people think not, but the truth is you can absolutely serve a subject who is in prison.

There are pros and cons to serving a subject who incarcerated, but at the end of the day service can usually be effectuated.

Serving an individual in prison means we have an accurate address for them and they are going to be at that address for a determined amount of time.  This is a benefit in an industry where individuals can evade service by simply not returning home for a number of days, keeping an extremely irregular schedule or can be difficult to find due to frequent moves.

Despite being in prison however, an inmate can refuse to see a visitor. This means while a process server can go to a prison and attempt service, if the prisoner refuses to come meet an unknown visitor then service cannot be effectuated. In these cases alternate methods of services can usually be pursued but the courts will generally require an attempt at personal service prior to any alternate methods.

It’s also important for a process server must be aware of the rules of a particular prison and its warden, and the best ways to attempt service. Since the increase in security regulations in recent years in prisons, many facilities have changed their procedures and having a process server who is familiar with the procedures of different prisons can help facilitate completing service.

Need to serve someone who is currently in prison? DGR has plenty of experience with the process. Contact us today to see how we can help.

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The Right To Due Process Is The Reason We Can’t Sign That Affidavit

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RightToDueProcess“I know they said they don’t live there – but they have to be lying. Can’t you just leave the papers and sign an affidavit saying they’re served?”

We work hard to always be accommodating to our clients but sometimes the answer has to be no. Why? Because of the right to due process.

We oftentimes run into situations when attempting to serve an individual that a member of the household informs one of our servers that person no longer resides there.

Admittedly, this can be a frustrating situation as they are not always telling the truth. But does that mean if we think they’re lying we can still leave the papers and consider the individual served? No.

What if the DMV report comes back to that address? The answer is still no.

People move and don’t report their address changes. Sometimes they really no longer live at that address. Process service is part due process and without being sure that individual resides where service is being attempted, the right to due process is clearly being violated.

As process servers, we have a duty to perform our jobs according to the law and also ethically.

It’s not the end of the line at this point in a service. Yes, the other alternatives are a little more intensive but there are other steps that can be taken. A skip trace can be performed to find alternate addresses for service, possibly a business address or additional residential address. If you really think the person is lying and no other alternate addresses can come up, a stakeout can be done to try to catch the subject returning or leaving from the residence.

If all of these options don’t turn up results, the court will no doubt agree you have completed due diligence in attempting to locate the subject and will approve an alternate form of service, generally by mail and/or publication.

While it’s by far easier to serve an individual at the address we have on file for them, we cannot simply leave papers there based on that and consider the person served. The court has ensured that a case does not stop there because the individual can’t be located but all of the bases have to be covered. We must be certain we have the correct address for the subject in order to preserve their due process rights.

So while our main goal is to always get an affidavit back to you saying an individual was served, we can only do that if it’s properly served!

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How New Jersey Process Service Differs From Other States

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New Jersey process serviceWhen it comes to New Jersey process service, the laws and rules vary in many respects to those of other states. It’s important to choose a process server who is knowledgeable about these discrepancies and will be sure to follow the rules of the state of both the originating court and the state where service is being effectuated in order to ensure the service is valid.

A prime example of these differences is the days on which service is allowed. Within New Jersey process service allows for service on every day of the week. Yet there a number of state where service isn’t permitted on Sundays, including Maine, New York and Tennessee.

Another difference between the states is the requirements for individuals to be allowed to serve. New Jersey process service allows private process servers to effectuate service. This wasn’t always the case – prior to 2000 only sheriffs were allowed to serve initial process unless they received a special appointment letter from a judge allowing a private process server to serve. Thankfully this means there is the option to utilize a private process server anywhere within New Jersey, allowing for quick turn-around times for attorneys and case timelines.

There are other states however where private process servers are personally appointed by the Sheriff through a special private process server program, such as in Georgia. Other states only allow private process servers within specific counties such as Florida. In Pennsylvania, private process servers are only allowed to serve in Philadelphia County. Outside of that area the Sheriff’s Department is the only way to effectuate initial service.

New Jersey process service also differs from some other states in there is no registration or licensing of any sort. In New Jersey any individual can serve as long as they are over 18 years of age and don’t have a direct interest in the case. Other states require registration and licensing, with some states like Florida requiring registration on the county level. Some states also require testing prior to licensing, such as New York and Arizona.

Some states offer greater protection to process servers than others. Within Illinois, California and Florida assault on a process server is considered a felony. Other states allow process servers access to gated communities to effectuate service, which can turn an extremely difficult and time-consuming service into a more routine service.

These rules require process servers to stay up to date on the latest laws in order to make sure service will be valid and in compliance.

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Your Process Server Could Cause Your Case To Be Dismissed

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Two recent cases out of Minnesota show the importance of making sure you utilize a process server who is knowledgeable of the ever-changing rules of service. In both cases the lawsuits were dismissed for ineffective service  and the rulings were affirmed by the appellate court.

In the first case the affidavit wasn’t filed within 20 days of service, which is mandated by the court. Instead, it was filed eight week after. While  missing  filing deadlines can be an attorney error, it can also be an issue if the filing is  handed by the process server. For example, within New York attorneys have only ten days from the issuing of a docket number to complete service and file the affidavit. If you have a process server who waits until the twelfth day, you’ll need to start all over with filing the case and obtaining a docket number.

In the second case the process server personally served a human resource employee on an insurance carrier at its office in Nebraska. Yet Minnesota rules require service needs to be made on an officer or managing agent. The court claimed the recipient of the service in this case wasn’t someone who “reasonably could be expected to inform the corporation of the service”.

A process server who truly understood the rules of the court relating to service of process would have been able to determine that the human resource employee was not the appropriate individual to effectuate service on. Yet in this case the process server went ahead with service, which means the court dismissed the case.

With extremely busy schedules and valuable time, refiling cases is something that shouldn’t be on any attorneys to-do list. It’s important to choose a process server who is going to serve your case correctly on the appropriate individual in accordance with the laws and rules of the given states involved.

In over 33 years, DGR has never had a case dismissed for ineffective service. We are constantly training our employees and keeping them up to date on the latest rule changes to ensure all of our service, so you never have to worry about your case being dismissed due to service issues.

dismissed case

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Should Process Servers Be Recording While They Serve?

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The recent unjustified arrest of a Texas process server that was later overturned once he provided his recording of the event has many of our servers wondering if they should be filming their serves as well. We thought this might be a topic a lot of servers are thinking about now, especially given the number of assaults that occur.

In this particular case a Texas process server, Stephen Hartman, was attempting to serve a judge was accused of disrupting court proceedings and arrested in May.  He had been recording the events which occurred through the use of a pen camera.  Thank goodness for the pen, because no less than five attorneys and two deputy sheriffs all submitted similar sworn statements that were completely inaccurate and painted a picture of a belligerent Hartman who crossed the bar – which the video shows is a far cry from the truth. Here’s the full story and the video if you want to check it out.

Even with the video evidence, Hartman JUST had his licenses reinstated. Without it though he would’ve been looking for a new career. So this raises the question: is this an isolated incident or proof that more process servers should be recording their serves?

Some question the legality of recording but in all states video recording is generally acceptable, with the exception of trespassing or when the subject has a reasonable expectation of privacy, such as in a bathroom or changing room (4th Amendment Rights).

The sticky part of this situation comes to audio recording. Some states require two-party consent, such as Massachusetts, where you can get a 15 year felony. In other states audio recording is acceptable as long as you are a party to the conversation.  If you are the one serving then that shouldn’t be a problem. However, the laws around audio recording vary from state to state and we would highly recommend looking into this before pursuing any type of recording device that includes audio along with video.

Sometimes having video evidence is the only way to ensure that the true events of the situation are undisputable. There are a number of options for process servers when using video:

  1. Record all services and later upload them and tag them with the date and subject. This can be helpful later down the road if anyone claims they weren’t served.
  2. Record services all as you go. If there is no incident simply delete them.
  3. Record only during services you anticipate could be a trouble situation, such as in court or when the client warns you there may be a potential issue.

Today’s technology allows some relatively cheap options for storing all of the data if a server did decide to record all services and store them.

Is this something you can see yourself using down the road? Or does it seem unnecessary and a little overboard?

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Process Server Insurance and Bond Requirements

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As part of the commentary on our last post in the Process Server LinkedIn group about last week’s post on process server registration and education requirements, a fellow process server questioned how many states require E&O insurance for process servers. The surprising answer to this question:  NONE! Not a single state requires E&O insurance in order to become a process server. Nevada is the only state which requires any type of insurance, and the statute does not require anything beyond general insurance.

Even though states don’t require E&O insurance, that doesn’t mean process servers don’t carry it. In fact it’s something that many have in order to run a process service business. The liability of not having it far outweighs the cost of having the policy.

However, several states do require bonds but the number of them are minimal. Check it out this visual created with data from the Fordham Law School piece:

Process Service bond requirements

The above is from the 2009 data, so it doesn’t include New York City.  The recent rules changes in New York City now require process servers to post a surety bond for the duration of their license period. If a server can’t get a surety bond, they’re required to pay into a Trust Fund established by the DCA.

Here’s the full list of the states who have bond or insurance requirements along with links to their rules:

Arizona

13 Alaska Admin. Code 67.920 – Bond Requirements.

California – certain counties

Cal. Bus. & Prof. Code § 22350

Florida

Florida Statute 48.29 

Massachusetts

Massachusetts  Law Chapter 41, § 92 – Service of Civil Process

Montana

Montana code§ 25-1­1111

Nebraska

Nebraska revised statute 25-507

Nevada

Nevada revised statute § 648.135

New York

New York Subchapter 23 of chapter 2 of title 20 section 20.406-1 

Oklahoma

Oklahoma Statute Title 12 , § 158.1(E)

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Dangerous Services: When “Lightweight” Matters

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Generally serving someone titled a “lightweight” wouldn’t cause a server to worry too much. That is unless lightweight is part of a title such as “reigning North American Boxing Federation lightweight” or “No. 1-ranked fighter among lightweights”, as was the case in our one of our recent services.

One of our servers was tasked with the job of serving this individual. While there was no history of violence (outside of the arena that is) thought of having to serve one of the best fighters in the world can be a little daunting. But serve him we did.

What has been your toughest or craziest serve to date? How do you prepare for what you anticipate being a difficult serve? Although we know the ones we’re warned about tend to be no problem, it’s the ones without the warning that can be trouble!

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The Process Server Misconception

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The role of the process server in many movies and tv shows, particularly that of Byron on the show All Worked Up, has created a distorted public conception of the general every day services of process servers. While process serving certainly does have its high adrenaline moments and constant need for improvisation and quick thinking, the high drama stuff that television shows are made of is not the typical situation for the majority of services that comes through the door.

While many services are on a personal level, such as divorce or foreclosure paperwork, there are also a large number of papers which are served on registered agents of companies on a daily basis.  There are whole companies and offices set up specifically to receive incoming legal papers for a number of corporations.  Services of this kind tend to be more low key and generally follow the same procedure.

What about the divorce papers you ask?  These can come as a shock to some individuals and certainly contain a higher amount of emotion than serving upon a corporation.  The same with foreclosures.  As process servers we are not insensitive to this and handle this with the utmost professionalism possible.

This isn’t to say that some situations can’t get out of hand, but we work hard to diffuse potential problems as quickly as possible. There are times when the police need to be called or when dogs are set on servers or threats are made which is unfortunately all a part of the job but that isn’t the case for the majority of services.   The violence and altercations on All Worked Up shows process service in a light that simply isn’t true.

How do you feel about this type of portrayal of process service? Let us know below.

 


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NAPPS Convention: What Could Make John Perez Resign?

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What could make the highly lauded John Perez, an attorney with over 20 years of process server experience, step down from his position on the Board of NAPPS? 

Principle. 

The name John Perez is well known throughout the process serving industry, with a long list of accomplishments to his name including:

  • Past president of NAPPS
  • Past President and current Director of the New Jersey Professional Process Servers Association (NJPPSA)
  • Author of the Professional Process Servers Guides to Service of Process in New Jersey, New York and Florida
  • Co-chair of the New York State Professional Process Servers Association (NYSPPSA) Education Committee and speaker at NYSPPSA educational seminars

John even added another accomplishment to his list at the NAPPS convention, receiving the Donald C. ‘Mac’ McDonald award.  This award is the highest honor by NAPPS and given out yearly to a process server who goes above and beyond what is expected.  The inscriptions on this award reads:

“In appreciation for the uncompromising dedicated service, exceptional visionary insight and focused unwavering leadership for the betterment of the National Association of Professional Process Servers”

These words certainly describe John, who has added so much to our profession and through his actions at the convention he exemplified this award yet again, showing his ‘unwavering leadership for the betterment’ of NAPPS.

While in Boston John proposed a motion that would open two more positions on the board for directors.   These two positions would provide the opportunity for new blood and new ideas, which he felt NAPPS could greatly benefit from.

The motion was ultimately denied.

No one was prepared for what happened next. In an emotional moment for all John stepped down as Director of NAPPS to open up a position on the board, maintaining that it was time for new voices to be heard.

While his valuable input will certainly be missed from the Board it serves to show there are many who are extremely dedicated to making NAPPS into the best association possible, one that serves its members through the changing times.

Thank you John for all that you continue to do for NAPPS.

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NAPPS Convention: Ethical Business Practices? She Wrote the Book On It

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We all strive to be as ethical as possible, especially these days as our industry faces intense scrutiny in the wake of issues of sewer service and heightened regulations. NAPPS had Kitty Hailey in to speak on the topic, an advocate of professionalism who literally wrote the books on ethics.  Author of The Code of Professional Conduct: Stands and Ethics for the Investigative Profession, Kitty has been named New Jersey Investigator of the Year and speaks around the country.

One of Kitty’s main speaking points was how you shouldn’t be giving away ANY of your work or expertise for free.  For those of you who have read our article on how we feel about free process service, Kitty’s speech was directly in line with our thoughts (and we didn’t even talk to her beforehand!).  She made the excellent point that as process servers, we have a skill and knowledge that others don’t.

As a part of process serving, the ability to locate new addresses is an often underestimated source of potential revenue for process servers.  Without this information, the clients would often be unable to move forward or would have a difficult time performing such searches on their own.  Kitty’s advice: Rather than giving away information for free, realize that you offer a valuable service and charge accordingly.

You can read more information on Kitty at https://www.kittyhailey.com/.

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