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What is Substitute Service of Process?

When a lawsuit has been filed, it is the plaintiff’s job to serve a summons and complaint of action to the defendant. This procedure is called the service of process. While a plaintiff is not expected to be the person to hand the papers to the defendant, they must verify without a legal doubt that due process has been performed. Due process in the case of a summons is that only the defendant, and not a separate person on behalf of the defendant, may be handed the court documents.

If a plaintiff has sufficiently attempted to deliver the summons and complaint of action several times, they may be able to request a substitute service of process. Under a substitute process, typical rules for serving the court summons have been lifted. The plaintiff may leave the summons and complaint with someone at the defendant’s house or work rather than attempt to give it to the defendant themselves.

How Can a Plaintiff Attempt Serve a Summons and Complaint Before Requesting a Substitute Service of Process?

A plaintiff must make three reasonable attempts, on three different days, to serve their summons and complaint to the defendant. Those attempts do not have to be the plaintiff simply handing the paperwork directly to the defendant. There are three ways a plaintiff may legally serve the court paperwork:

  1. A sheriff from a courthouse near the defendant’s home address may serve the papers: In this scenario, there must be two copies of each document and a fee waiver on the sheriff instruction form.
  2. The plaintiff may give the papers to a registered process server: A process server works on behalf of the court to serve documents such as a summons and complaint.
  3. A friend or family member of the plaintiff over the age of majority may serve the papers.

A plaintiff may use one or all of the above, so long as it is attempted three separate times on three different days. If they cannot serve the papers, they may request to move on to a substitute service of process.

Who Can a Server Leave the Documents With During a Substitute Service of Process?

After the plaintiff has tried to serve the defendant several times, they may request a substitute service of process. If granted, a plaintiff may then deliver the summons and complaint of action paperwork to someone at the defendant’s home or business. The person who receives the summons and complaint of action paperwork must be over the age of 18.

After the server leaves the summons and complaint with the substitute individual, the process server must mail a copy of the documents to the location they had served the papers. The process server must use first-class mail and pre-pay for postage ahead of time. The process is considered complete ten days after mailing the summons and complaint of action.

What Happens After a Substitute Service of Process?

Once the substitute service of process is complete, the process server must file a declaration with the court explaining in detail the “diligent attempts” that they made to properly serve the documents before resorting to a substitute service of process. This written document must explain that the process server attempted at least three times, on three different days, at three separate times of day, and all known addresses for the defendant during hours where the party would most likely be available. The process server must also explain how likely they were to catch the defendant at the right time.

If you need assistance serving a summons, or are being served and would like a consultation on your rights and options, call our law office today.

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Estate Planning Attorney Eric Ridley