Typically service of process goes uncontested by defendants, but when someone does claim to be improperly served it’s critical to the success of the case to be able to prove otherwise. Should the individual contest service, the issue will go before a judge to determine whether service was properly effectuated. If a process server fails to prove service was completed, the consequences of improper service are significant and will lead to the case being dismissed.
Ramifications of Contested Service
Contesting improper service doesn’t always happen in the initial stages of the case. The case could be well into proceedings, meaning substantial funds could have been invested already in the form of e-discovery, expert review and attorney fees. In fact, a default judgment could be entered and an attempt to collect on the judgment could be in progress before the service is contested.
What is a Traverse Hearing?
In a Traverse Hearing, the plaintiff must generally prove sufficient service in order to establish jurisdiction in the case. When a defendant is contesting service they will likely try to provide documentation of proof of improper service. For example, they could provide records showing they didn’t reside at the address on the affidavit or documents confirming they were traveling during the time of service.
Choosing a process server
The completion of proper service can be taken for granted when choosing a process server. The reality is that not all process service companies are equal in terms of knowledge of the laws and rules and commitment to proper service. Choosing the incorrect process service company could result in a dismissed case.
For example, the use of independent contractors by process service companies can lead to a lack of training and sufficient expertise in regard to what constitutes adequate service. Should an independent contractor complete service improperly, the attorney will still be responsible for the case being dismissed and explaining to their client what happened. Only employee-based companies are allowed to provide training to keep their process servers up to date with changes and in compliance with rules.
The no serve, no charge model has also been proven to encourage improper service, also known as “sewer service”. In a situation where a process server will not be paid if service isn’t effectuated there is little encouragement to continue to make attempts to complete service. Additionally, there is incentive for a process server to complete service even if the person they serve isn’t an appropriate individual to be served under the rules. In a New York case which resulted in nearly $800 million in default judgments being vacated due to sewer service, the process service company involved was ordered by the court to pay process servers the same amount for unsuccessful services as successful ones to reduce the possibility of improper service.
Take care when selecting your process server. Search to see if there have been any lawsuits against them by an attorney after improper service resulted in a case dismissal. Check to see if they use employees or independent contractors and what processes are in place to ensure accuracy of affidavits. Once proof of service is submitted to the court, you want to feel confident in your process server’s ability to prove successful, diligent service in accordance with the rules should a Traverse Hearing arise.