Serving the Summons Again

by Will Newman

I wrote about a key event in a lawsuit—service of the summons—in a post back in April 2021. I revisit the post now to share some additional observations after having ordered service on a bunch of summonses since then and writing an article about service for the American Bar Association’s Litigation News.

  • Some defendants dispute whether they were properly served. In that event, the court holds a small trial to determine whether service was proper. In New York, these are called a “traverse hearing.” There may be witnesses and evidence about how and when the summons was delivered, and the judge will rule on sufficiency.

  • Judges can strictly enforce rules, even if it means treating service as proper when the defendant did not physically receive the summons. If a defendant does not update her address in public records, it is possible she may not be able to say that service on an old address was insufficient. And if a defendant does not pay attention to the documents delivered to her home or office, her lack of diligence is no excuse.

  • Initially, the burden of proof is on the plaintiff to show evidence of service. Often, a sworn statement by the person who made the delivery is sufficient. An “affidavit of service” filed with the court is often enough to place the burden on a defendant to prove she did not receive the summons.

  • People sometimes overlook the summons and focus on the complaint since the complaint is the document that contains the details of the dispute and the legal claims. Still, the summons is a crucial document. For a trial to begin, the plaintiff needs to have the summons delivered in a specific manner to the defendant. This ensures the defendant is required to respond promptly.

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One of the first things that needs to happen in a lawsuit is delivery of a summons to the defendant. There are strict rules about how this must be done. Failure to satisfy those rules may have the entire lawsuit is thrown out.

Why should you continue to read this post about service of process:

  • You got a complaint by email and wonder whether it is legally effective.

  • Someone is trying to sue you, and you want to know what to expect when the lawsuit starts.

  • You would like to see a picture of a mail truck on a calm day, with a postal worker delivering letters to friendly people in a peaceful suburb.

Service is Generally Made in Person

Rules such as Federal Rule of Civil Procedure 4(c) set forth how a summons must be served. And for lawsuits against people, the simplest way to serve a defendant is to hand-deliver the summons to them. Because there are laws about how this must be done (for example, in New York, the delivery person usually must be over eighteen, not be a party to the lawsuit, and not serve anyone on a Sunday), law firms hire professional process servers who stay current with the rules.

But most rules for service of process provide an alternative to personal delivery. Many states allow service to the defendant’s home or business, where the complaint can be left with an adult. New York’s CPLR 308(4) allows a plaintiff who has been unable to serve a defendant personally to serve a summons by affixing it to the door of the defendant’s home and then mailing it to them, too.

Defendants Can Waive Service Rules or Designate Agents to Accept Service

Although a plaintiff is required to follow formal rules for serving a complaint, a defendant may waive this requirement and accept service by any means she wishes. Defendants may clarify their wishes in a contract or by email. Further, some rules, like Federal Rule of Civil Procedure 4(d)(2), make a defendant liable for the cost of a process server if she does not waive the service rules.

Corporate defendants may designate the state government its agent for service of process, or they can affirmatively designate a third-party agent. In those cases, plaintiffs can serve a defendant by mailing a complaint to the registered agent instead of to the company’s headquarters.

Alternate Service for Evasive Defendants or Defendants Abroad

Courts may modify service rules for defendants who cannot be easily served. If a plaintiff can explain how she tried to properly serve a defendant, but failed, she may ask the court to permit service through alternate means. States have allowed plaintiffs to serve defendants by email and even by Facebook message.

The U.S. has a reliable postal system. When a plaintiff needs to serve a defendant who is outside of the United States, however, different rules apply. Federal Rule of Civil Procedure 4(m), for example, allows a plaintiff to serve a summons in compliance with the rules of the country where the defendant is found. It also allows the plaintiff to serve the defendant under international treaties, such as the Hague Service Convention in a country that is a party to the Hague Convention. Under these rules which vary by country, a defendant may usually be served by mail or through a designated office that handles requests for international delivery of summonses. So it may be easier to serve a defendant abroad by mail than to serve a local defendant where personal delivery is required.

Litigation law