Delivering legal papers may seem like a simple task, but ensuring that the papers are delivered to the correct person at the right time and in the appropriate manner can be somewhat more complex than it appears. If the required rules are not followed, improper service of process can delay a case, require service to be attempted again, or create other legal complications.
Knowing the reasons for service to fail can prevent attorneys, businesses and individuals from making common mistakes and ensure that documents are handled properly from the outset.
What is Improper Service of Process?
Improper service of process occurs when a court or jurisdiction’s rules for service of process are not followed. The rules may differ in line with the type of case in question and the location of the documents to be served.
Failure of service does not necessarily indicate that the case is invalid. It’s usually the result of the requested service being performed improperly and may require correction.
What are the 9 Common Reasons Service of Process Fails?
1. Court Papers Are Served Incorrectly
One of the most frequent issues is that of court papers served incorrectly failing to meet the requirements. Documents may be served by specific persons, in certain ways, at certain times.
There could be a minor error in the procedure which could lead to invalid service of process.
2. The Wrong Person Is Served
Documents usually must be delivered to the person or entity having the authority to receive them. If the wrong person served is NOT authorized to accept the documents, then the service may be challenged.
This is particularly important in the case of servicing businesses, organizations or individuals of similar names.
3. The Address Is Incorrect
An incorrect address for service can make successful delivery nearly impossible. Records may be out of date and a process server might take the wrong road to the wrong place, people move and businesses relocate.
Checking the available address information prior to service can prevent wasted attempts and delays.
4. The Person Cannot Be Located
The person sometimes cannot be located at the given address.. A process server cannot serve someone who is never present or whose current location is unknown.
Other investigation or alternative service may be available depending on jurisdiction.
5. The Documents Are Delivered at the Wrong Time
There are some jurisdictions that have rules as to when a legal document may be served. Failure to make delivery at authorized time or days may also help to establish failed service of process.
These requirements may vary depending on local rules, and should be determined beforehand before attempting service.
6. The Server Does Not Follow Jurisdictional Rules
The services may vary from state to state, court to court, and case to case. What works in one jurisdiction may not work in another.
Not following those requirements is another very common cause of improper service of process
7. Required Proof of Service Is Missing
Completing delivery is only part of the process. Courts may want to have some form of evidence regarding the date and place the documents were served, and who the documents were served upon.
Incomplete and/or incorrect proof can cause concerns about whether service has been completed.
8. The Recipient Refuses or Avoids Service
There are others who intentionally refuse to be served. May refuse to open the door or leave the place or make delivery difficult.
But just because a process server doesn’t show up doesn’t necessarily mean all other ways of serving the process are “lawful”. They will be available based on the rules that apply.
9. Service Is Attempted Using an Unauthorized Method
In some instances, personal service may be requested or allowed, and in others, other service may be allowed. Using a method that is not authorized can lead to invalid service of process, even when the documents eventually reach the intended person.
How Can You Avoid Service of Process Problems?
Preparing is the first step in knowing how to avoid service or process. Ensure that the recipient’s details are accurate before sending the documents out, check service requirements and use a process server if necessary.
Maintaining good records of each attempt is also important. The date, address, time and results may be significant if there is a follow-up inquiry about the service.
If a previous attempt has failed, think about failure of service, and try again rather than doing the same.
What Happens After Failed Service of Process?
When there is failed service of process, the next step depends on the circumstances and applicable court rules. It might need to be repeated or another way of doing it may be possible.
In the event of a challenge to the service of court papers served incorrectly the court may ask for proper service in order to proceed with the case against the party being served.
Service rules vary from jurisdiction to jurisdiction, so it is critical to adhere to the rules that are applicable to the specific circumstances.
Conclusion
There are many reasons service of process fails, from an incorrect address and wrong recipient to an unauthorized delivery method or missing proof of service.
Checking information, rules, and making an effort to document all attempts can help minimize the risk of improper service of process issues. Attorneys and parties can prevent unnecessary delays and more attempts at service if the service is done properly from the beginning.
Frequently Asked Questions
What is improper service of process?
Improper service of process occurs when legal documents are not delivered according to the requirements established by the applicable court or jurisdiction.
What happens when service of process fails?
A failure of service may require another service attempt or, where permitted, a different method of service. The specific next step depends on the case and jurisdiction.
Can serving the wrong person invalidate service?
Yes. If the wrong person served is not legally authorized to receive the documents, the service may be challenged and potentially determined to be invalid.
What makes service of process invalid?
Invalid service of process can result from using an unauthorized method, serving the wrong person, using an incorrect address, failing to follow timing requirements, or not completing required documentation.
What should I do if I have an incorrect address for service?
An incorrect address for service should be corrected before making additional attempts whenever possible. Updated address information can help prevent repeated unsuccessful service attempts.
Can a process server keep trying if someone avoids service?
A process server cannot serve someone who cannot be located or reached, but the law may allow other service methods in certain circumstances. The applicable jurisdiction determines what alternatives are permitted.
How can I avoid service of process mistakes?
To understand how to avoid service of process problems, verify the recipient’s information, review jurisdiction-specific requirements, use an appropriate service method, and maintain complete records of attempts.
Can court papers served incorrectly be served again?
Usually, if court papers served incorrectly do not satisfy legal requirements, another properly completed attempt may be necessary. The applicable court rules determine what must happen next.
What are the most common reasons service of process fails?
Common reasons service of process fails include incorrect addresses, wrong recipients, unavailable recipients, improper timing, unauthorized methods, and incomplete proof of service.
Does failed service mean a lawsuit is dismissed?
Not necessarily. Failed service of process generally concerns whether the required legal documents were properly delivered. Whether a case continues, is delayed, or requires corrective action depends on the circumstances and court rules.
