When a lawsuit is started, it may come as a surprise to the person or entity being sued. Or, if the defendant is used to being served on a near-daily basis, it may be a common occurrence. Importantly, whether a defendant is being sued for the first time or the 100th time, the manner in which service of process is done correctly remains a constant. While the filing of a lawsuit tolls – or stops – the statute of limitations from running, the lawsuit itself cannot move forward until proper service of process has been made on the defendant(s). Importance of Proper Service: Courts across the nation have held personal jurisdiction, which is obtained through service of process, is the bedrock of due process. Not surprisingly, service of process is mandatory in every lawsuit. Moreover, it is only after the defendant has been properly served that a court obtains jurisdiction over him or her to impose an enforceable judgment of liability (and resulting damages). Failure to obtain proper service upon the defendant requires that the lawsuit be dismissed due to the court’s lack of jurisdiction. Just as important, if the applicable statute of limitations has run and the plaintiff does not obtain proper service in a timely fashion this may be an uncorrectable error, thus barring him or her from recovering at all. The most common and accepted method of process of service in Georgia, and other states across the nation, is personally if the defendant is an individual or upon an officer or managing agent if the defendant is a business entity. There are other acceptable alternative methods of service of process, however, including waiver (akin to acknowledgment by defendant). Once the defense of improper service is raised, the plaintiff bears the burden of effectuating proper service and can do so as a matter of right at any time prior to the expiration of the statute of limitations. If a defendant does not raise the defense of insufficient process of service in its first responsive pleading or filing, this defense is waived. Determining Proper Service Typically, a defendant who is served – and no waiver of service has happened – will immediately investigate the circumstances surrounding the actual service of process. The purpose of this investigation is to see if there is a way to claim improper service of process and defeat the lawsuit. Common questions asked by a defendant regarding service of process include: ● Whether both the summons and complaint were included with the process; ● Whether the summons correctly identified the proper court; ● If the defendant is a business entity – who was served, what is their title, and what are their duties; ● What was the date of entry of the service of process; ● At what location was process served; and ● Who was the individual who served process (including what they were wearing and what was communicated). Despite the critical part service of process plays in a lawsuit, many plaintiffs take this for granted and they should not.
It is no surprise that staying in the know of process of service rules within the United States is a feat in itself. This is particularly true when the process of service rules vary – slightly at best, and vastly at worst – depending on the state. Therefore, when it comes to international process of service, the task becomes even more complex. Below are the basic concepts you should know about international process of service. Expectations on Timelines Notably, process of service within the nation’s borders can be expected to be completed, on average, in as little as two days and as much as seven days. When it comes to issuing service of process across the border, however, this timeline changes. In fact, service of process can take anywhere from three months to two years – depending on the method selected for international service and the country in which the person or entity is to be served. Methods of International Service of Process Generally, there are two methods of service of process overseas. These methods allow for the maintenance of proper jurisdiction over the entity being served abroad and conform to American laws and the foreign country in which process is served. These are (1) The Hague Service Convention Treaty and/or (2) Letters Rogatory. The Hague Service Convention Treaty (“The Hague Service Convention”) was created in 1965 to allow a method for service of process overseas without necessitating consular or diplomatic channels. This method reduces the length of time it takes to effectuate process by three to six months. Approximately 65 countries have signed on to The Hague Service Convention. For service of process to foreign countries, the only method of service of process that is available is through Letters Rogatory. Letters Rogatory are requests that originate from the court in one country to the court of a foreign country. These requests generally go through diplomatic channels. As a result, service of process can easily take more than a year. Service by Letters Rogatory not only takes significantly longer than through The Hague Service Convention method, but the costs are also generally higher. A third method of service that is possible, but may not be legally enforceable in local courts, is service by Agent. This may be possible when an attorney is only interested in notifying the defendant of a lawsuit, particularly because it is much faster than the other two methods. This type of service by Agent can be effectuated in weeks instead of months or years. Although this is an option for international service of process, but American courts typically do not enforcement of a judgment overseas, and the opposing country may not acknowledge service by Agent, either. For help with service of process overseas, contact Ancillary Legal today. When it comes to choosing an international process server, be sure to pick one with experience in these matters
Earlier this year, a panel of federal judges ruled that New Orleans’ criminal fines and fees system ran afoul of the constitution. The reasoning, the court argued, is that the monies collected are used to support the court’s general fund. The funds are overseen by the criminal court’s judiciary. The District Court’s Decision: In the fall of 2018, a U.S. District Court held imprisoning people for failure to pay court fines and fees without investigating their ability to pay violated the U.S. Constitution. Additionally, the district court found it a violation of the Constitution to give judges the power to determine a person’s ability to pay when these debts help cover the court’s operating budget. The court found this violated the 14th Amendment of the U.S. Constitution. The losing party appealed the issue of whether judges could determine a person’s ability to pay fees while having spending authority over revenue generated from the fines and fees. The Appeals Court’s Decision: Six criminal defendants filed suit claiming they were jailed simply because they could not pay fines and fees to the court. The New Orleans-based appeals court ruled in favor of the group. The appellant argued the lower court used the wrong standard when interpreting decisions regarding institutional biases, distinguishing the “average man” from the “average judge.” The appeals court disagreed. The court noted that when the judges oversee the money that is collected, it is too easy to make a biased decision on a person’s ability to pay fines and fees. Notably, the general fund is not used to pay the judges’ salaries. Instead, it was used to pay for office supplies, conferences, staff salaries, building and equipment maintenance, jury expenses, insurance, transcripts and other costs. Fourteenth Amendment to U.S. Constitution: Generally speaking, the 14th Amendment to the U.S. Constitution contains three major provisions: 1. Citizenship clause: Granted citizenship to all individuals who were born or naturalized in America; 2. Due process clause: Declares that a state cannot deny a person life, liberty or property, without the due process of the law; and 3. Equal protection clause: Declares a state may not deny someone within its jurisdiction the equal protection of the laws. When a person is unable to pay court fines or fees, like the six criminal defendants in the New Orleans’ case, they end up in “debtor’s prisons.” This practice has had a long history of criticism and is often cited as causing debilitating cycles of incarceration and reincarceration for minorities and the poor. For more information on this issue, click here.
Service of Process is the procedure and method by which a party to a civil or criminal lawsuit puts another party on notice that legal action has been taken. Service of process is essential to the right of due process given by the Fifth Amendment to the United States Constitution. Generally, a defendant is being served by a plaintiff by way of a process server. Understanding Service of Process: A process service delivers, or “serves,” legal documents on the parties involved in the lawsuit. While this may sound like a simple enough concept, the laws and regulations governing process service make it complicated as defective service can be a real issue for the case. The United States Constitution’s Due Process clause prohibits a court of law to have personal jurisdiction over a defendant – unless the defendant has been provided proper notice of the proceedings to be held in court. Logistically, courts require a plaintiff to a lawsuit to have the court summons and the complaint served on the defendant. Effective service of both of these documents is considered “process.” There are several ways to serve another party and not all methods of service are available in all lawsuits. Before attempting service on a defendant, it is critical to know what law governs service. This is particularly true for service overseas, as international service of process laws are more complicated and must be followed closely to effectuate proper service. Notably, if service of process is not completed properly, the case will be unable to progress. Additionally, jurisdiction of the court can be contested at any point during the lawsuit. Below are the general types of service: ● Personal service: this happens when a process server hand delivers the complaint and summons to the named party in the lawsuit. Personal service may happen at the defendant’s home, workplace, or some other location. The person served must be identified, handed the papers, and told they are legal court documents. ● Service by mail: this happens when the process server mails the complaint and summons to the defendant at his or her home or mailing address. Even though the documents are mailed, proof of service must be detailed including information on to whom the documents were addressed, the location from which the documents were mailed, as well as when the mailing happened. Typically, when service by mail is allowed, it is preferred to be done via certified mail. ● Service by posting: This type of service is allowed in limited cases such as when a landlord can secure service by posting the complaint and summons in eviction cases when other methods fail or when the plaintiff is allowed to serve a defendant by posting the documents at the courthouse. ● Service by publication: this type of service happens when a party publishes the summons and complaint in a news publication in an area where the defendant is likely to reside. Typically, the court must give the plaintiff permission to complete service this way. Generally, a plaintiff must show that other attempts to serve the party have failed prior to being permitted to use this method. If you need help with service of process on your case, contact Ancillary Legal today.
The Supreme Court of the United States (SCOTUS) recently held that proper service of a Foreign Sovereign Immunities Act (FSIA) lawsuit requires strict adherence to the statutory requirements. The court held that the FSIA mandates a mailing to be sent directly to a foreign minister’s office in a foreign state. The Case Below: In 2010, the victims of the U.S.S. Cole bombing and their family members filed a lawsuit against the Republic of Sudan under FSIA. The lawsuit alleged that Sudan contributed to the families and victims’ losses because of its support of al Qaeda. The plaintiffs tried to comply with proper service under FSIA’s Section 1608(a)(3) by requesting the clerk of the court serve Sudan’s minister of foreign affairs at the country’s embassy in Washington, D.C. When Sudan failed to appear in court, D.C. District Court entered a default judgment against the country in the amount of $314 million. Subsequently, the plaintiffs registered the judgment in the U.S. District Court for the Southern District of New York. Court orders were issued directing numerous banks to hand over Sudanese assets. As a result, Sudan appealed the orders, arguing the default judgment was invalid due to lack of personal jurisdiction. The law, Sudan argued, required the plaintiffs send the service packet to the foreign minister’s principal office located in Sudan.The Sudanese Embassy in the United States was not enough under the law. The Second Circuit disagreed, finding service to be proper because mail to the embassy could be reasonably expected. Sudan appealed to the Supreme Court. SCOTUS Decision: The SCOTUS explained that, due to the delicate diplomatic relations implicated by lawsuits brought under FSIA strict construction of the statute takes priority over considerations of equity. Generally, foreign sovereigns enjoy immunity from lawsuits in American courts under FSIA – unless a statutory exception to the act applies. If an exception is applicable, a plaintiff may establish personal jurisdiction over a foreign state defendant through section 1608(a)(3). This section allows service by any form of mail that requires a signed receipt and should be addressed and sent by the clerk of the court to the head of the ministry of foreign affairs of the defendant sovereign. This method of service is exactly what the plaintiffs used. SCOTUS focused on the language of the FSIA, focusing on the words “dispatched” and “addressed.” Since the foreign minister neither resides or keeps a usual place of business at the embassy, service to the embassy does not satisfy “address” in its dictionary meaning. The Court found that “dispatch” implies sending correspondence directly to a recipient and, therefore, indirect service on the foreign minister at a U.S. embassy falls short of the meaning of the word, as well. The case is the Republic of Sudan v. Harrison.
Christopher Barnett, a 36 year old former gubernatorial candidate from Oklahoma is being charged with assault and battery with a deadly weapon. A process server was attempting to serve an eviction notice on Barnett at Barnett’s residence around 9 PM when Barnett answered the door. Video footage shows the process server, dressed in plain clothes, talking to Barnett. Barnett claims that the process server was pushing on his door, trying to get in the house. Video evidence does not confirm this. Eventually, Barnett opens the door and speaks with the process server. At the end of the video, you can see the process server, who is standing away from the the door and in the front yard, run off after being shot in the arm by Barnett. Barnett claims he was fearing for his life and believes he is protected by Oklahoma’s stand your ground law. Barnett is currently out of jail on bond. Barnett has a history of being in the news. He recently placed 8th out of 10th in Oklahoma’s GOP primary for the governorship. Barnett is also the largest legal weed grower in the state of Oklahoma.
Defendants might not “Like” this. However, the legal system follows new technology, though sometimes slowly.
Service of process through electronic means is growing in popularity, especially with international defendants. However, courts can be reluctant to grant it. Judges are slow to come around to new technologies.
Serving someone through electronic methods dates back several years, with some courts granting service of process through fax machines. After that, service by text and service by email was a natural progression. It was only a matter of time before Facebook and Twitter entered the game as well.
Serving someone in a federal court by electronic means is rule 4(f)(3). This Rule says service can be made by order of court, provided the method requested is not prohibited by international agreement. This is no problem for countries that are not members of the Hague Convention. Courts are divided on whether or not the Hague permits electronic service. The first school of thought is that the Hague provides the exclusive methods for service, and thereby prohibits any method that is not Article 5 service, mail service, or physical service. The second school of thought is that the Hague Convention does not expressly prohibit electronic service, so it does not violate 4(f)(3). Decisions vary from jurisdiction to jurisdiction.
However, with Hague countries in cases where the defendant’s address is unknown, the Hague Convention does not apply. This means plaintiffs can use 4(f)(3) when the defendant has not availed themselves to service through the Convention. This is a huge win for the plaintiff so that they can have their case heard in court. The courts always prefer to allow cases to be decided on their merits rather than a procedural roadblock. Of course, proper notice is a bedrock of our legal system though.
If you are having trouble serving a defendant, you should explore all available options. Checking to make sure your new found options are in compliance with process laws and service conventions is extremely important. When you have a question, seek out an expert.
Contact us for a free consultation with an Ancillary Legal representative.
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