Process service is a system to deliver summons, complaints, and other legal documents to the defendant when you want to take them to court. Also known as due process, this procedure ensures that the respondent has sufficient time to seek the legal support they require.
A process server plays a critical role in the justice system because their job maintains a necessary balance of power between an individual and the state. When due process is not afforded the diligence it deserves, court cases can be delayed or dismissed entirely.
The importance of this methodology means there are incredibly stringent guidelines pertaining to how a person can be served, and specific steps that must be followed. When non-professionals try to engage in process service, necessary measures may get omitted which results in incorrect service. This article will explain some of the common process service mistakes and discuss what to do if court papers get served incorrectly.
In order to ensure the timely and proper delivery of process service, reach out to the professional and competent team at DR Legal.
The United States Constitution Mandates Service of Process
The United States Constitution dictates that no individual will have liberty, property, or rights compromised without due process. This essentially means that every person has the right to be informed that they are being summoned to court by a regulated and uniform procedure. By doing this, the constitution and the United States justice system ensure that the rights of an individual and the power of the state are moderated.
Every defendant in a lawsuit needs to be served the legal papers by a person over the age of 18, although the rules can vary depending on the county, the type of papers, and other factors. In most cases, the person serving must hand the papers personally to the defendant. In some cases, exceptions are made. Courts require an affidavit of service to prove where, how, and when a person has been served.
What Happens if Someone is Not Served Properly?
Proper service is crucial because it gives notice to a defendant about the court hearing and allows them time to solicit legal advice in preparation for the court date. Incorrect or incomplete delivery performed by an amateur process server hinders the legal process, often resulting in vexing delays or case dismissal.
The best way to avoid court papers being served incorrectly is by hiring a professional process server with a sound understanding of how the process service procedures work. An experienced process server will also be able to track down an avoidant defendant quickly and accurately so you can give your legal proceeding a smooth start.
To ensure a seamless and complete service process, give the experts at D&R Legal a call to handle your process service. Our team executes due diligence and will provide you with a fully supported, proficient, and affordable service so you can advance to your court date sooner.
What if The Process Server Served The Wrong Person?
Personal service is the most common way a summons or complaint is served. This involves the process server tracking down the defendant and handing the documents to them in person at their home or work address.
Occasionally, and particularly among inexperienced process servers, the legal documents get delivered to the wrong individual. Under similar circumstances, a server may try to serve process to a deceased defendant or to serve papers at an outdated address. Mistaken identity can seriously jeopardize your case.
If the defendant becomes aware of ineffective service, they may contest with the courts and file a motion to dismiss the lawsuit or start the case all over again. When this happens, any prior default judgment that may have been ruled in your favor will be forfeited.
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Not Verifying Each Delivery
Part of ensuring you are serving the right individual is by cross-checking to verify their identity as they are being served. When the delivery verification step is skipped, it becomes extremely challenging for the courts and the judge to assure that the documents got delivered to the intended recipient in a timely manner.
Professional process servers will always take field notes on the job to substantiate any contested claims that the service was ineffective. This is because sometimes motions to dismiss based on these grounds may surface much later in the trial. Therefore, the process server keeps a record of the event to mitigate potential complications down the line.
What is an Affidavit of Service?
An affidavit of service is a legal document completed by the process server stipulating that the individual was identified, verified, and that the documents were delivered in the required timeframe. The affidavit also specifies the place and the way the defendant was served.
Affidavits must get notarized by a legal professional. Skipping this step lays the grounds for the opposing party to contest the service of process as ineffective or insufficient, meaning you will have to start the legal proceedings again from the beginning, or worse, the case gets thrown out.
What Happens if Court Papers Are Sent To The Wrong Address?
An alternative method to personal service is service by certified mail, where legal documents get posted to the defendant’s residence via registered post. The purpose of the serving process is to notify a defendant of a lawsuit against them, so if you have sent the documents to the wrong address, the defendant has grounds to contest the effectiveness of service.
Particularly if you do not know the defendant personally, or if it has been a long time since you have contacted them, it pays to verify the defendant’s residence before serving by certified mail. Professional process servers are adept researchers who ensure that the right person is being addressed when serving via mail.
What happens if there’s an Incorrect name on legal documents?
It could be that the process server has tracked down the right person and served the documents effectively, only for the defendant to discover that the documents do not contain their correct legal name.
This is not all that uncommon, particularly when the plaintiff doesn’t know the defendant personally. The courts, when they seek to correct the name, must determine whether a reasonable person could determine that the individual identified on the legal documents was, in fact, the defendant. If this is the case, the misspelling is considered a misnomer.
Alternatively, if the individual could not devise the documents related to the defendant, the misspelling would be known as a misdescription. The plaintiff must then move to add the correct defendant to the action.
If you have any questions about this process or need help finding the right professional process servers for your needs, don’t hesitate to reach out so we can ensure a fast, reliable and easy process service for you.
Failing to Prepare The Process Server
There are people who act in compliance with civil litigation processes, and then there are those who don’t. If you are aware that the defendant may engage in playful tactics to avoid being found and served, it’s a good idea to let your process server know. Additionally, if a person usually behaves in a hostile or confrontational manner your process server can be better prepared and serve more effectively if they are in the loop.
If you have relevant information like the defendant’s residential address, workplace, parking space, or any upcoming vacations or professional trips, pass it on to the process servers. These details help to assure that the individual is served correctly on the first attempt, which can save on costs if you pay on a per-attempt basis. Moreover, it reduces the likeliness that the documents fail to get served and get you to your court date faster.
Invalid Proof of Service California
Providing documents to the court clerk verifying that process servers have performed their jobs correctly, and substantiating the documents with evidence, is a part of the civil litigation process.
In some counties, a small claims court clerk will send the documents via certified mail directly to the defendant’s address for a small fee. The signed post office receipt is returned to the court clerk, and that is considered proof of service.
However, if you’re opting for personal service, substituted service, or service by first-class mail, the courts have no way of knowing whether the service process was executed correctly unless you tell them. We use a document called a Proof of Service form that you can obtain from the court clerk. It gets signed by the process server and details how, when, and where the service took place.
Use a professional process server like D&R Legal to get your papers served in the state of California.
Telling the Defendant They Will Be Served
It may be tempting to contact the defendant to notify them you are taking legal action against them or that service is impending. But this may open a can of worms that makes it more difficult and expensive to serve them.
For example, if they want to engage in evasive antics like choosing to stop answering the phone, refusing to answer the door, or not showing up to work to avoid being served. Even disclosing that your application or complaint has gone through may jeopardize your chances of serving them easily.
Final Thoughts
The service of process demands precision and accuracy. If someone is avoiding service of process, or the court papers find their way into the hands of anyone other than the intended defendant there can be major consequences.
The opposing counsel may file a motion to dismiss your case entirely, or you may have to start all over again and lose any potential rulings in your favor. Hiring experienced process servers is the best way to ensure your process will be served efficiently and effectively and avoid complications and delays.
D&R Legal is the process serving experts in California. We guarantee the most smooth and streamlined service available and offer our full support as you move through civil litigation procedures. If you need affordable process servers from legal specialists who can get it right the first time, send D&R Legal a message or call us today to discuss your specific needs at 1-510-797-9996.
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Good Afternoon, yesterday someone came to my home looking for………. he was holding some papers and I stepped out and said that is my son but he doesn’t live here. He said ok I’ll just say he doesn’t live here. I was like (is that just someone looking for him?) or were they serving papers?) He walked away. Today I go home for lunch and my other sons girlfriend happened to be there picking something up and she told me that earlier there was a woman there and that she was looking for ? and that she was serving papers to him from? and that he needs to pay? so that ? I was like…? I’m his mother and no one told me anything yesterday and here my sons girlfriend that we barely know gets all this personal info told to her. I know that personal info should never be given out and if they were it should of been said to me his mother. Now I am upset because for one thing its personal and the other is we hardly know her and now she knows this info. If that person that I spoke to yesterday would of waited I could of told him where to go. I wasn’t just going to give out info to just anyone it’s too crazy right now to many stalkers stealing your info. [email protected] My name is Eloise please let me know.
It might depend on what state your in, but did they serve the documents on the girlfriend? And if so, does the girlfriend actually live there?
What happens if there is no complaint with served papers? I was served an order for pre hearing on contempt. This is custody/visitation contempt.
Not every document has a complaint.
My bf got served papers from a process server but she gave him her affidate of service is it still valid as being served because he got served the wrong paper
It does not matter if a proof of service was served on him, was the actual documents also served on him? If they were, then he’s been served.
I am a Texas Private Investigator and SecurityConsultant. A friend who owns a company wants to hire my services to serve a Termination of Work Contract to a Building Contractor. Can this be done legally or does a Process Server need to be hired?
Would depend on your state but in most states PI’s can serve legal documents.
There could be limits on the type of documents, for instance, in California a Private Investigator could NOT serve a Prejudgment Claim of Right to Possession or any type of Writ (Bank Levy, Earning Withholdings Orders and Attachment Orders). But there is nothing preventing them from getting both their PI License and a Process Server Registration.
A process server left documents for a former roommate AFTER i told him that said indivudual doesnt reside at this address and hasnt lived here in over 10 years. Can i send the papers back to the original sender?
You can and probably should with a letter stating the facts to the attorney. Provide as much info as you can. Some courts allow the documents to be served at the last known address or a Usual Place of Mailing. So if you have a forwarding address for the subject you should probably send it to them.
Process server came to my door I was sleeping she said I see you and you have been served is it correct service California
If you were sleeping… how do you know a process server came to the door?
Seems to be a good service to me, seeing that the server told you they had legal papers for you, you were within easy speaking distance (you heard them serving you and they could see you) and they left the documents. That’s what service is, in California.
I currently have a judgement on collection.. I was never served.. Proof of service says it was served at my mother’s address to a man with short hair.. My mother lives in senior living facility.. I’m in California.. I don’t even know what it’s for..
You probably need to get a copy of the documents from the court. If it’s a legitimate debt you’re probably going to need to deal with it, if not you would need to Quash the Service. If these are from another state you should probably contact an attorney in that state.
Hi I hav a few questions I live in Cali and I wanted to know if u can serve someone custody papers in front of the minor child? Also could the other parent that I’m serving the papers for be present like not really in the same breathing air next to me but say said person was at a park and the other parent in the car on the street and I served the parent at the playground is that ok or not?
Yes to both questions.
Process server came to my door today I was sleeping she said I see you and you have been served is it correct service California
If you were sleeping… how do you know a process server came to the door?
Seems to be a good service to me, seeing that the server told you they had legal papers for you, you were within easy speaking distance (you heard them serving you and they could see you) and they left the documents. That’s what service is, in California.
I was served the wrong papers wherein the forms served to me consisted of a complaint with one case number, and other forms typically included with an unlimited civil complaint that contained a different case number and different plaintiff. It seems to me that this would be considered an improper service (since I’m not being served the correct complaint) and to my dismay, there’s no form to report such improper service. As a result, if I’m not mistaken, it requires a Motion to Quash Service of Summons or a possible Motion to Dismiss for Insufficiency of Process or Insufficient Service of Process to report the mistake to the court and either one can be costly for hiring an attorney to draft such motions. Is there no other way to report this mistake made on the service process?
Call and email the Other Party or the Attorney and Let them Know that the documents are messed up and they need to serve you with a correct copy of the documents. Otherwise they will take the default judgment against you, when you don’t answer the complaint.
I checked my mailbox today for my mail and someone I assume trying to serve me for a lawsuit left the paperwork in my mailbox. Is that legal? I am in Wisconsin. What do I do if it is not legal?
You need to reach out to a Wisconsin Process Server or Attorney. I don’t know what is allowed there.
My wife is indefinitely in Europe, but there was an attempt serve her some papers at a friends house in California, where she stayed at awhile back.
The friend, a man, informed the process server that she does not live there anymore, but he pushed the papers to his hand and run off.
What are the alternatives?
Could be a good service, assuming your wife’s mail still goes to that address. But may depend on what court to dox are filed out of.
I live in Florida. An process server gave my son (26 years old) some documents, he thought they were from the accountant. He was only told that they were for mr. xxx, i.e. father of him. My husband has been in Europe for 6 months now due to the death of his mother and to save his assets. My son and I are not going to give him another bad news. How can we return the documents? Thanks!
Sounds like the documents have been properly served. He needs to deal with the case.
My Ex’s mother came to my home today and handed my 11 year old papers that were to be served to me. It’s a hearing date and time for a PPO that I got signed against him. I wasn’t present in the room when she handed our son the document. I feel this is considered being improperly served. Could you please explain to me if what she did is justifiable? Thank you!
Depends on the state the documnets are filed in. I have seen as low as 13 in other states being sub-served. I would reach out to a local process server or an attorney.
I woke up to the sounds of 3 men in my house I was o the 3rd floor sleeping when I heard my name and they announced themselves as the state police. So I ran down and was met by one of the officers on the second floor he told me to put my hands u, I respectfully declined and told him to get the f out of my house that they were trespassing.
And now down stairs I am in front of 2 more cops and I ask for names and badges to no response. The guy in pain clothes said he was there to serve me a federal subpoena I said your can’t serve me by trespassing he said my landlord, who was not present at all during or after this. He said they have his permission to come in the house. I said u do not have my permission so get tf out. He are u the owner I said I rent this property he said the fbi doesn’t need a warrant so consider yourself served and he says let go boys we are done here. 😤 I think I have grounds for a civil right complaint and a reason to file a motion to quash the subpoena.
I have no idea what the FBI is allowed to do or not do. You need to contact an attorney.
Hello Jason,
I am in Washington state, my sons farther was supposedly served incorrectly. He was in Oregon when the docs says he was served ( here in WA at his home). Now he is trying to file a motion, is this the correct next step? If not help, please. I don’t want to go back to court we have been at it for years and looking forward to put this behind me.
Thank you 🙂
No idea, you should contact an attorney in Washington.
If I was improperly served , or not served until the day of court,can I get my case dismissed?
Depends on the court.
A process server left paper at a friend’s house out in the open on their car. Then submitted a statement saying they served me, in the statement they described a person who is clearly not me. The only way I know about it is that my ex told my daughter that I was served and she told me, so I looked it up on the court website. What should I do?
Probably chalenge the service, in California it’s called a Motion to Quash.
I was served a Subpoena through email and certified mail.
The Subpoena had one date, but the Notice of issuance of Subpoena had another date on it.
I want to get this Subpoena Quashed.
Can I do that in this situation?
You need to talk to an attorney in your state.
So I was not home, but the proof of service of summons indicates a personal service, not substitute & the process server asked if the individual who answered was me, the papers indicates they said yes, and then the server gave the papers. The process servers gave the papers to my mother in law who i recently had a TRO granted against. To, me definitely not authorized to receive. My mother in law also has taken all of my legal mail. Is this a bad service?
Probably, but would depend on the type of documents and what court they are filed out of.
Also, the process server would have no way of knowin that was your mother in law, unless they had a photo or a description of you and most papers we serve, we don’t get that kind of information.
Does a proof of service date in a civil suit where certified mail was used can the certified mailing be done 2 days after proof was filed with the court?
Not sure what you mean. Sounds like a typo on the proof, but you should check with the court.
If the constable served papers wrong, (left individual and corporate with security guard) can the constable be sued if the case is dismissed?
That may be proper service, depending on the state the dox were filed in and the type of documents.
Divorce case in CA … are ALL attempts of personal service required to be noted and/or filed with the successful proof of service?
Petitioners attorney claims two unsuccessful attempts were made to serve Order to Show Cause and Affidavit for Contempt on Respondent over a 30 day period (from filing). After the 30 days, Petitioner and Respondent had an emergency hearing unrelated to the OSC where Petitioners attorney used the opportunity prior to said hearing to directly serve OSC to Respondent at the courthouse. Respondents attorney intercepted the “service of OSC” so Respondent had no way of knowing what he was being served until the hearing that included said OSC where Petitioners attorney asked the judge for compensation from Respondent for the process servers unsuccessful attempts of service, in addition to his hourly fee for having to personally serve the Respondent. The Proof of Service that was filed by Petitioners attorney only notes the one successful attempt … there was no documentation or notations to support the unsuccessful attempts.
We’re not having any luck with a confirmed answer and Respondents attorney does not want to revisit this since the charges were dismissed upon payment. We just received a copy of the filed proof of service so how do we know one let alone two unsuccessful attempts were made without backup? If backup is required, where do we go for that information? ** Respondent has already paid the fees ordered by the judge but wants to respectfully request the monies be returned during settlement, if they were in fact erroneously paid based on a verbal statement from Petitioners attorney
Thank you in advance for any help you can provide.
In most cases unless it was required by the court for sub-service or a publication order for example, the full diligence would not be filed with the court.
I was served at my United States Post Office PO box in California. Is this normal? The summons complaint was just placed there inside the box. Not sure how they got into my PO box. No envelope or anything else. I have not received anything else via regular mail or certified mail. Any help would be greatly appreciated I was out of the country for 3 months when this happened so I’m sure the mentioned dates have long passed.
Generally you cannot serve a United States Poast Office Box, but maybe they served the dox on an employee there at the post office and that is who placed the dox in the box. If it is a Commercial Mail Receiving Agency or “The UPS Store” for example, we can serve the documents at those locations. You should probably look up the case and see if a proof of service was filed and the judgment entered.
I live in California. If a plaintiff fails to file proof of service for a limited civil lawsuit within the 60 days of filing their complaint what would be the outcome of the case for not doing this? Could a defendant file a motion to have the case dismissed for the plaintiff not filing a proof of service?
There is no requirement to file the proof within 60 days in California. Generaly the attorney will file the proof when they go to take the default judgment. If the judgment has not been taken, then you could still file your answer with the court and should do so immediatly.
I got served court papers for debt collection case. The date the papers were drawn up was March 13, 2013. The date the server wrote she served me was Feb 22, 2013.
Can I file something to get dismissed on grounds wasn’t properly served? Thanks for your time.
Sounds like you were served and maybe there is a typo on the proof of service.
I received an email that I have an upcoming court date in a week. When I called for more information they said I was served at a previous residence of mine that I have not lived at in over 7 years. The current address that was served is a vacant duplex. what are my options? I do not feel i was given sufficient time to get legal help.
You would need to Quash the Service or Object to the Service and probably file something with the court.
A process server served papers to the agent’s address listed on the Secretary of State website for California. The guy who answered admitted he was the secretary and it was the correct address, but I think it’s his father whose name is listed as the agent (they have the same first and last name). I’ve never seen what the guy looks like and am worried it wasn’t the right person who got served. How can I know for sure? What are my options to not have the case dismissed?
The server should probably do it as a Sub-Service, rather than a Personal Service.
What if the address for the lawyer is not the right address where he said on the papers that got served is that legal have no way to get in touch with him?
Check the State Bar Website for the attorney’s current address.