Rulings Archives - DGR Legal

Court Rules Sheriffs’ Ban On Georgia Process Servers Legal

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Georgia process servers

 

Georgia Court Rules Sheriffs’ Ban On Process Servers Legal

The Supreme Court of Georgia has ruled that the sheriff’s ban on process service is legal under the current court rules in a tough blow to Georgia process servers.

Background

The Georgia Association of Professional Process Servers (GAPPS) filed suit against the sheriffs of multiple counties, looking for intervention from the court to allow them to serve process. Although the rules state process servers can serve in Georgia if the sheriff of a particular county allowed it, not many sheriffs were doing so which was essentially rendering the rule useless.

The Sheriffs argued that the rule gave them the choice and they were simply choosing not to allow private process servers in their counties.

The trial court originally found in favor of the Sheriffs and GAPPS appealed.

Supreme Court Rulings

On relief:

In the ruling, the Judges cited the specific Georgia rules relevant to the decision in OCGA § 9-11-4.1  sections (a) and (h)(1):

Certified process servers. A person at least 18 years of age who files with a sheriff of any county of this state an application stating that the movant complies with this Code section and any procedures and requirements set forth in any rules or regulations promulgated by the Judicial Council of Georgia regarding this Code section shall, absent good cause shown, be certified as a process server. Such certification shall be effective for a period of three years or until such approval is withdrawn by a superior court judge upon good cause shown, whichever shall first occur. Such certified process server shall be entitled to serve in such capacity for any court of the state, anywhere within the state, provided that the sheriff of the county for which process is to be served allows such servers to serve process in such county.

…….

 (h) Notice to Sheriff

(1) Prior to the first time that a certified process server serves process in any county, he or she shall file with the sheriff of the county a written notice, in such form as shall be prescribed by the Georgia Sheriffs’ Association, of his or her intent to serve process in that county. Such notice shall only be accepted by a sheriff who allows certified process servers to serve process in his or her county. Such notice shall be effective for a period of one year; and a new notice shall be filed before the certified process servers again serves process in that county after expiration of the one-year period.

The trial court originally found “the plain language of the statute barred declaratory and injunctive relief”. In the appeal, the Supreme Court ruled the trial court should have dismissed those claims, as the Sheriffs had raised the defense of sovereign immunity.

Sovereign immunity is meant to provide those acting in the capacity of their job for the government immunity from civil or criminal suits. Sheriffs fall under this grouping as they are acting “as an arm of the government”. Declaratory judgment and injunctive relief are barred by sovereign immunity so the Supreme Court vacated that part of the trial courts’ order.

On mandamus:

GAPPS had requested mandamus, a writ in which the court commands someone to perform a public or statutory duty, in their appeal in an effort to get the Sheriffs to allow the use of certified process servers. It was this particular request for mandamus that took this appeal from the Court of Appeals to the Supreme Court.

The court found GAPPS didn’t show a clear legal right to mandamus , stating the Sheriffs did indeed have the right to choose and if they chose to not allow private process in their county “the court cannot force them to do so”.

The opinion focused on the inability of the law to force a particular outcome when a law requires an official to make a decision or use discretion. The analogy used in the opinion was that of the Secretary of State needing to decide boundary lines between counties. The line needed to be figured out, but the court couldn’t say where that line should be. It was up to the Secretary of State.

On attorney fees:

Because GAPPS did not “prevail on its claims”, the court ruled the association wasn’t entitled to attorney fees.

The future for Georgia process servers

A lot hinged on this case for Georgia process servers and it’s certainly a blow to have all claims denied. As it stands, certified process servers will continue to only be able to serve in the very few counties where they are currently approved to serve by the Sheriff.

 

 

 

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NYC Log Book Clarification Allows for Some Shortcuts

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The New York State Professional Process Servers Association (NYSPPSA) has been hard at work trying to reduce the burden of record keeping put into effect by the DCA. A memo from the NYC Department of Consumer Affairs to process servers and process server agencies is a prime example of the efforts put in by NYSPPSA and answers a question many process servers have been asking.

The current rules are considered cumbersome by New York process servers and are extremely time consuming, particularly when dealing with high volume.  RCNY § 2-233(b) requires that each service must be logged in a bound, paginated book in chronological order and must include:

  • The date
  • Time
  • Address
  • Type of service
  • Name and license number of the process server organization from where the process was received or the firm  or individual name

There are also some other items which must be included depending on how the service is effectuated. The memo answers the question of if process servers are allowed to use abbreviations or codes to identify the process server agency and license number. Thankfully the answer to this is yes as long as the first page of the log book contains a key to the abbreviations used.

The memo also says process servers can use a pre-formatted ink stamp to record entries in the log book. For example, the type of papers served (such as “Summons and Complaint”) and the name and license number of the process service organization could be created in stamps to reduce entry time.

Keeping up with a log book is still a task but hopefully this news will reduce some of the time needed to meet DCA requirements. 

For the full memo click here.

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Clearing the Confusion: NY Process Server Rules Clarified

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One of our last posts about New York process server regulations prompted some emails and questions regarding what rules need to be followed when serving New York cases out with the 5 boroughs (Manhattan, The Bronx, Brooklyn, Queens and Staten Island) or serving out of state cases in New York.  To find out, we went straight to the top of the ladder and spoke with Larry Yellon, Immediate Past President of NAPPS and NYSPPSA to get some clarification.

Usually in most cases of process service the rules of the state being served in are what need to be followed, but sometimes when the affidavits are returned to the originating court they look to see that the original state’s process server rules are followed. For example, in New York state service on Sundays is not allowed. Process servers have varying practices and opinions as to whether or not to abide by that rule when serving a New York case in New Jersey, as in New Jersey we can serve on any day of the week.  Larry’s advice is not to serve a New York paper on Sunday as Section 11 of the New York General Business Law prohibits with no exceptions noted.

This varies from court to court but because affidavits can sometimes be rejected for that reason we usually try to follow both states’ codes. While it’s additional work, it’s less work than having to go back out and serve again when the court rejects the affidavit. These types of previous grey areas are what’s caused many process servers to be unclear on how the new rules impact them. Knowing that the courts are not always uniform in what they accept, the new DCA rules and regulations have some process servers wondering what exactly they need to be following. 

Most have heard of the extensive changes to the rules once the DCA became involved and it’s affected many servers across the country. We’ve heard stories of process servers outside of New York being told by their clients they have to follow the New York rules and obtain GPS coordinates. We’ve also heard some process servers outside the state who serve New York work were considering flying to New York and getting certified in order to be able to continue, as certification is a new requirement of the recent rule changes.

Larry Yellon was able to clear up clarify what these new rules meant and to who.

If you are not serving work in the 5 boroughs, you do not need to follow the new rule requirements if you are not licensed.

This means if you are not licensed and if you are receiving work from the 5 boroughs and serving it outside of that area, you do not need to use GPS requirements or get licensed. Of course your client can still decide this is what they want but legally there is no requirement to do so.

If you are serving work in the 5 boroughs that is coming from a case that originated in a court outside the 5 boroughs, you do not need to follow the new rule requirements.

For process servers in the 5 boroughs looking to avoid the possibility of fines and the need to implement GPS and third party tracking, you can just serve work coming in from other process servers and out of state firms whose cases originate from outside New York.

These rules only apply to the 5 boroughs.

Serving any New York court case in the 5 boroughs whether it is venued in the 5 boroughs or the state of New York requires the rules to be followed. However, a non-licensed process server serving a case venued in the 5 boroughs and being served elsewhere in New York does not require the rules to be followed.

 

Still have questions about the NY rules? Let us know! Chances are if you have a question about something someone else does too. We’ll try to get it answered and posted so everyone can find out. 

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New Jersey Looks to Eliminate Affidavits of Service

Posted by | Legislation/Bills, NJPPSA, Rulings, Uncategorized | No Comments

While our last post focused on the issue of e-filing affecting messenger service, there is also the potential for process servers to be impacted by e-filing. Within the state of New Jersey, process servers are looking to gain access to the e-filing system, participate in the electronic filing of proofs and to be able to submit e-signatures along with the proofs.

The New Jersey Professional Process Servers Association (NJPPSA) submitted comments on April 30th, 2013 meeting the deadline of May 1st for comments on proposed amendments to R. 1:32-2A.  By having the ability to electronically sign and file proofs of service, process servers will be able to reduce this cost while offering an additional valuable service to their clients.

The comments submitted by NJPSPA would save considerable time and expenses for process servers and their clients. The ultimate goal in obtaining the ability to e-file proofs of service would be to eliminate affidavits which require notarization and instead move to certifications, which do not require a notary. Both affidavits and certifications require the server to attest to the fact that all statements included are correct under the penalty of perjury.

Eliminating the need for notarization would mean proofs of service could be scanned in by a server then e-filed with the court utilizing their assigned electronic signature.  Particularly for process serving companies with a large volume and servers who work outside of the office, this move would help reduce the amount of time needed to complete services and reduce costs. Rather than having to wait for the affidavit to be notarized and wait for it to be mailed back to the office, the server could in theory file the certification immediately after service was effectuated.

Have you had any experience with e-filing in your state? How has it impacted your business or procedures?

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Maryland Bill 554 Withdrawn: The Power of State Associations

Posted by | Associations, Rulings | One Comment

Edit: After speaking with a MAAPPS representative we have been informed that it was House Bill 1291 and not Senate Bill 554 which was retracted. The bills were filed nearly simultaneously in both the House and the Senate. MAAPPS succeeded in having them withdraw the Bill from the house and convincing them to allow MAAPPS input into the crafting of the Bill. Read more details here.

We have received word that as of 5pm last night the sponsor of Maryland Bill 554 sent his aid to withdraw the bill. Even better, those who support the bill have agreed to meet with MAAPPS in May to see what type of legislation would be agreeable to them. 

Seeing the results of what has been accomplished in a short period of time is a great example of what can be done when a state has an established and effective association and is supported by outside state associations. Without MAAPPS, this bill may have gone unchallenged on the level it did. Instead, numerous NJPPSA members sent letters in opposition to the bill, as did many others.  By taking charge and reaching out to other associations MAAPPS was able to rally a large group to their cause, resulting in their ultimate goal being accomplished.

Congratulations to all Maryland process servers!

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Texas Bill to Allow Service of Process By Social Media

Posted by | Electronic Service of Process, News, Rulings | 3 Comments

There have been a number of recent bills on the table which could affect process servers. One of the top ones from last week involved Texas HB 1989, which if enacted could make service of process by social media a viable option.

According to the bill the court must find a number of things before an individual can be served via social media:

(1)  the defendant maintains a social media page on that website;

(2)  the profile on the social media page is the profile of the defendant;

(3)  the defendant regularly accesses the social media page account; and

(4)  the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.

There has been no procedure set for how it will be determined if any of the above are true. In any event it is certainly an indication of where things are headed in our industry.

As pointed out by Jeff Karotkin, Ohio already has a bill in place which allows for electronic service of process. Within Ohio electronic service of process is currently as threatening to personal service of process as is service by publication. Given the relatively quick adoption of this practice in a notoriously slow adapting profession, the movement of the law to accept such service may mean the future could see it becoming more of a front line service.

A pointed difference between these two bills though is in Ohio it is clearly stated that this should be used an alternate means of service after reasonable diligence has been executed. In Texas, this type of language doesn’t exist in this new bill.

Another interesting piece in the Texas bill is that it does not mention electronic service of process and specifically refers to social media.  This may lead to some necessary clarification down the road if the bill is passed to determine exactly what sites fall under the category of “social media page”.   Would that eliminate service through email as most of us with a gmail or other email account generally don’t have a “social media page” for our email address (aside from those with Google+ of course!).

Do you think if passed this bill would have any real impact on our industry?

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