What is Service of Process?
"Service of Process" is making sure the other side gets a copy of the papers you are filing (for example, a complaint). If you are starting a case, your case cannot go forward until the other side is served with your complaint. Someone who is over 18 years old and is not a party to the law suit may give service. The person who is responsible for service must physically give a copy of all necessary forms to the person whom you filed a complaint against in court (the defendant). Throughout the case, you are required to make sure that all other parties are "served" with copies of all documents you file in the case.
How to Serve a Complaint or Petition
After a case (Complaint or Petition) is filed with the court clerk, the court will issue a Writ of Summons in 5 to 10 days. The Clerk of the Court will send the Writ of Summons to the Plaintiff's mailing address. The entire original case must be served to the defendant. making sure that the Writ of Summons is attached to a copy of the complaint, petition, or motion.
Methods of Service
A Writ of Summons issued by the District Court is only good for 30 days YOU CANNOT SERVE THE OTHER SIDE YOURSELF. Service can be made in one of the following ways:
- Sheriff or constable (best option)
- Private process
- Certified mail by a third party
Service by Sheriff
One of the county sheriff's or constable's responsibilities is serving defendants in civil suits. The fee for this service is usually about $40.00 or $60.00 out of state. Usually the court clerk can send a copy of the case that the plaintiff provides to the sheriff if a cashier's check is included. The sheriff will send the clerk a "return of service" to prove the sheriff served the papers. It may take a few phone calls to the sheriff to ensure the defendant is served.
This method is often fast and is especially helpful if the other side is hard to locate. Ask the Clerk of Court to send you the Writ of Summons in the mail. If you are representing yourself in a case of divorce, custody, visitation, child support, alimony, name changes or contempt, you need to give an additional form to the process server. Give the process server the papers to be served. Ask the process server to return the completed Affidavit of Service to you once the other side is served. Once you have all the necessary documents, you must go back to the court and file the completed Affidavit with a copy of the Writ of Summons attached with the Clerk of Court. For each return of service, you MUST provide the Court with the following: Printed Name of Private Process Server Mailing Address of Private Process Server Telephone Number of Private Process Server If the Private Process Server name is unreadable, service will be considered unacceptable.
By an Adult (over 18 years of age)
Private Process Using an Adult Over the Age of 18: This is an inexpensive way to serve someone. THE PRIVATE PROCESS SERVER CANNOT BE YOU. The adult serving the papers must give the papers directly to the other side. The adult serving the papers may NOT leave the package on the other side’s doorstep, however they can leave it at the opposing party's home with someone else who lives in the same home, as long at the person you leave it with is "of suitable age and discretion." While the courts have not explained exactly what "suitable age and discretion" means, the person should not be a minor, and should be able to understand that the papers need to be given to the defendant. It’s better to serve someone who is close to the opposing party rather than someone who is not, even if they live at the same residence. When serving the opposing party directly, the service package need not be placed in the other side’s hands, they just need to be given notice that they are being served and given the documents. Not holding the documents or dropping them is not a defense to service. With this method, the server can even leave the documents at their feet. The person who served the other party must complete an Affidavit of Service (Private Process, CCDR 55 (link is external) for cases of divorce, custody, visitation, child support, alimony, name changes or contempt). You must file the Affidavit of Service along with a copy of the Writ of Summons with the Clerk of Court in order to prove the other side was served.
This is a good method of service if the other side lives far from you. It does require that the other side accept the papers and personally sign the receipt (green card). The adult serving the papers (other than you) should take the papers to the Post Office and follow the instructions for mailing by certified mail, restricted delivery, return receipt requested. The adult must fill out an Affidavit indicating that he or she mailed the papers and the other party received them. If the other side receives the papers, the receipt (green card) will be returned to you with the other side's signature. Attach the receipt (green card) and a copy of the Writ of Summons to the completed Affidavit, and file the Affidavit with the Clerk of Court as proof that the other side received the papers.
There are some problems with this type of service. Hostile opposing parties will not want to, and may refuse to sign for the letters or will simply not go to the post office to pick them up. In these cases, other service methods such as by sheriff or by private service would be preferable.
If the receipt (green card) is returned with the wrong signature or if the entire envelope comes back undelivered, you will have to make another attempt at service or see an attorney. Make sure to keep notes and records for your attempts to serve the party, whether these attempts are successful or not.
If you have problems serving a party by certified mail you can contact the sheriff of the county where the party lives. You should explain to the sheriff that you have been unsuccessful at serving the party by mail and request their help. Ask the sheriff what the cost is for this service and if there are any other requirements. A blank certificate of service and or certificate of evasion of service may have to be mailed to the sheriff.
Posting or Publication
If after several attempts to serve the other side you still are not successful you may have to consider serving the other side through alternative methods, such as Posting or Publication.
Service by Posting or Publication is only done when the person who has filed the documents has shown by affidavit that the whereabouts of the opposing party are unknown. Additionally, the person who has filed must show that reasonable efforts have been made in good faith to locate the opposing party. After those criteria have been satisfied, the court may order service by mailing a notice to the opposing party's last known address and by posting the notice by the sheriff at the courthouse door or on a bulletin board within its immediate vicinity. The court may also order the notice to be published at least once a week for three weeks in one or more newspapers circulated in the county where the action is pending