You see process servers do some pretty crazy things in movies and TV, but what is a process server allowed to do, actually? Continue reading to find out.
A process server is an individual who has been hired to deliver legal documents.
They can also file court papers and work to retrieve court documents.
Process servers exist in the United States because individuals and entity’s involved in legal action are required to have “due process.” This is the privilege of letting them know that there will be a court hearing involving them. Typically, this involves a civil lawsuit, family law proceedings and sometimes delivering documents pertaining to a criminal case.
The process servers must deliver papers to an individual, a business, an entity’s representative or lawyer. In the latter case, they can deliver evidence or information from the opposing party’s counsel.
You may have seen process servers on television and in movies. This may have led you to ask, “What is a process server allowed to do?”
In this article, we’ll go over some of the do’s and don’ts of a process server’s job.
For now, we’ll keep it specific to service of process in California. Be aware that there are variations in each state.
What is a Process Server Allowed to Do?: Serving Papers
A process server’s main function is to give notice to the opposing party of a pending action, so that party, knows about it and can respond to the matter. He or she will typically show up at the defendant’s door or at their work and hand them the papers. This is to let a party know someone has filed a complaint against them.
Depending on the state, there are a few complex rules about serving the papers. In some states, a process server may trespass to gain access to the defendant or his or her property. In other states, these warnings cannot be ignored.
Breaking and Entering
A process server may not break into a home or business to serve papers, no matter the state’s rules on trespassing. Instead, they will have to come back to the home or place of business another time to see if the defendant is available then.
If a Defendant Does Not Answer the Door
A process server cannot compel a defendant to answer the door. In some cases, people who know a lawsuit has been filed against them will attempt to avoid service. They may erroneously believe that this means the case will simply go away. It won’t.
However, a process server can still not force someone to open the door. He or she will have to come back on another date if the defendant refuses to open the door.
A Process Server Cannot Pretend to Be Law Enforcement
Although you may have seen a process server do something similar on television, they cannot pretend to be part of the law enforcement. They cannot tell a party who refuses to open the door that they are the police, sheriff or any member of law enforcement and that they need them to open the door.
A process server may be required to get creative when it comes to locating defendants who have decided to make themselves scarce. This may include waiting outside the home until they leave so that the process server can serve the papers. It may also include waiting outside a workplace or friends or families home to do the same thing, this is known as a stakeout.
But a process server may not break state law to do so. This means he or she cannot serve papers or gain access to a building under false pretenses. He or she must be forthcoming with who they are and why they’re looking for the defendant but being general about who you are and why you are there is allowed.
This is generally not available in California except for very specific documents or circumstances, like service by Special Court Order. This is much more common in several other states, so make sure to check your specific states laws.
Leaving Papers with Someone Over the Age of 18
If the defendant is continually evasive, you can leave the papers with someone else in the household over the age of 18. You can also leave the papers with someone in his or her place of employment. This will count as service only if the document you are serving allows for this or the judge has signed of on a Special Court Order.
If I’m Being Served, Do I Have to Open the Door?
If you’re being served papers, you do not have to answer the door legally. You can call the police if the process server is trespassing and this is not legal in your state.
You should know that even if you do not open the door, this does not mean you can hide from or evade the lawsuit.
Alternatives for Inability to Serve
A process server may spend several hours or days attempting to serve an individual. If the person is particularly evasive, he or she will submit a sworn affidavit saying they were unable to serve the defendant.
In this case, there are a few ways that the court can go about service. In some states, putting an ad for service in the paper will suffice. This shows the party was served via public notice.
At this point, the defendant is considered served and the process server no longer needs to continue to hunt down the defendant and can move on.
A defendant can drag on lawsuit proceedings initially by attempting to avoid service. But after a certain amount of time, the court will not continue to allow it.
Bottom line: if you have someone attempting to serve you papers, they will find a way to do so. It is best to accept them and begin to build your case with your defense team.
Process Servers and Their Rights
“What is a process server allowed to do?” is a question for which the answer varies tremendously from state-to-state. You should not assume that one law goes for all 50 states. If you have questions about your rights as a defendant or process server, it is best to research your own state’s laws.
For more information on process servers and the law, visit our site or call us today to discuss your specific needs at 1-510-797-9996.