Service of Process in Litigation Matters: Special Considerations

In an ideal world, litigation and subsequent court proceedings would be handled efficiently and fairly. But we’re all still waiting for that ideal world to appear. In the meantime, the best way to avoid costly legal fees and extended litigation is to make sure all of your court documentation is handled correctly, starting with successful service of process. 

Before you can begin court proceedings in the United States, federal law requires you to notify the opposing party or parties involved in the case via official notice of all court documentation. Various states and jurisdictions maintain different regulations regarding service of process, but in most cases the defendant in the case must be served personally (in some scenarios a member of the household or authorized individual at a company can accept service). 

We’ve said it before and we’ll say it again – personal service is the gold standard in the process serving world. But when an individual can’t be located, many states allow alternative or substituted service. This process lets the documents be delivered by a cohabitant at the recipient’s residence or the manager or owner at their place of employment. 

What if these methods are unsuccessful, though? In these situations, some jurisdictions allow service of process through an alternate method like mail or through publication—such as an announcement made in the newspaper. 

What is an Affidavit of Service?

Once the documentation is delivered, the individual responsible for their delivery must fill out an affidavit of service. This legally binding statement documents when and how service of process was completed. Affidavits of service are then notarized and filed with the court. 

While the process is usually fairly straightforward, complications arise when the affidavit of service is delivered incorrectly, illegally, or outside the regulations established in the place of jurisdiction. When this occurs, the affidavit may be rejected by the court, which could cause serious delays and even cause dismissal by the presiding judge. 

In order to avoid court rejections, there are special considerations to keep in mind when delivering documentation and filing an affidavit of service. These considerations include service of process to military personnel, individuals outside the United States, and hostile or otherwise unavailable defendants. 

Delivering Documentation to Military Personnel 

When serving members of the military, you must first determine their legal domicile. Legal domicile refers to the state and residence where they were initially recruited, even if they currently reside elsewhere. So if a soldier is currently stationed at a base in California, but joined the military in Virginia, their domicile is still considered to be the state of Virginia—no matter how long they’ve been stationed in California, and even if they own property there. 

Additionally, you’ll need to determine where the person is currently residing. If they currently live on a military base (on post residence,) it can be extremely difficult to serve documentation, since only family members, veterans, and active duty personnel are allowed inside.

Navigating International Process Service 

Another special consideration involves attempting to deliver documents to someone outside the United States. You’ll need to determine if the person is in a member country of the Hague Service Convention, or Inter-American Service Convention. 

Countries included in these treaties require documentation to be delivered through a central authority within the country, and will provide (eventually) an affidavit of service. Countries not included in these conventions may require you to go through Letters Rogatory, or formal request for service via a foreign court. 

However, the most common issue associated with affidavits of service from service completed outside of the rules and regulations of the receiving country, in which the documents are not delivered or filed correctly, preventing the courts from gaining legal jurisdiction over the individual. In order to avoid court rejections, it is crucial that the affidavit of service contain all the required information and documentation, especially when the defendant is trying to avoid service. 

Options for Serving Hostile or Avoidant Defendants 

When a defendant is avoiding being served, certain procedures must be followed, including extensive documentation by the plaintiff showing due diligence, or repeated efforts, to deliver documentation. While some plaintiffs have successfully served documentation electronically and through social media accounts, others have seen their cases delayed or dismissed when a judge refuses to accept the legitimacy of electronic service in instances where a request for alternative service wasn’t granted. 

Because of its complex nature and the fact that personal delivery is still considered the gold standard for process service, investing in a professional process server is the most efficient and proven method for successful document delivery. Contact us today for help navigating every special consideration and unique circumstance regarding your case.

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