Insufficient Service of Process: Why Proper Service Matters

While for some, being served with a lawsuit can come as a surprise, for others it is simply an everyday occurrence. Whether the defendant is a rookie to the legal system or a well-established veteran, the plaintiff’s burden of serving process correctly does not change. It is important to note that while the filing of the complaint in court helps to toll the statute of limitations from continuing to run, the actual lawsuit itself cannot continue until service of process has been properly made on the defendant(s).

Georgia’s Service of Process Rules

Personal jurisdiction, which is required in every lawsuit, is obtained through proper service of process. In fact, only after the defendant has been properly served does the court have proper jurisdiction over the case. Should a plaintiff fail to properly serve the lawsuit upon the defendant, the lawsuit must be dismissed due to the court’s lack of jurisdiction over the matter. Even more important, if the applicable statute of limitations has passed and the plaintiff does not obtain proper service timely there may not be an opportunity to correct the service of process error and the claim may be forever barred.

Georgia law mandates that all plaintiffs serve both the summons and the complaints upon the defendant:

● Personally, if the defendant is an individual; or
● An officer or managing agent if the defendant is an entity.

There are alternate methods by which service of process may be properly executed. The two aforementioned ways, however, are the most popular. A plaintiff’s failure to obtain service by the proper method defendant is the best and strongest defense against a lawsuit when disputing personal jurisdiction or proper serve. If a defendant fails to bring up insufficient process of service with the court in the pleadings, this defense is waived. If the defense of insufficient service of process is waived, however, the plaintiff generally has the right to correct this prior to the expiration of the statute of limitations. If service happens outside of this deadline, the plaintiff bears the burden of showing due diligence was exercised in serving the defendant in the matter.

Proper Service of Process Matters

There are several reasons why a plaintiff may wait until it is close to the statute of limitations expiration to file a lawsuit. Unfortunately, if there is a problem with service of process and the defendant gives notice, it may be difficult for the plaintiff to meet the burden imposed. If you or someone you know needs help with service of process in a domestic or international lawsuit, contact us today.