Process Serving FAQ — Service of Process

Question 1

What is the difference between service of process and service of documents?

Accepted Answer

Service of process refers specifically to the delivery of initiating documents — most commonly a summons and complaint — that formally notify a defendant of a lawsuit and establish the court's jurisdiction over that person. Service of documents (or service of papers) is a broader term covering delivery of any court filing or correspondence between parties after the action has commenced. The procedural rules governing each differ: service of process is subject to strict statutory requirements; service of subsequent documents is typically governed by less demanding rules permitting mail, email, or electronic filing system notification.

Question 2

Is a process server required to be licensed?

Accepted Answer

It depends on the jurisdiction. Under FRCP Rule 4(c)(2), any person who is at least 18 years old and not a party to the action may serve process in federal court — no license is required. State requirements vary significantly. California, Florida, Illinois, Nevada, and New York City require process servers to register or obtain a license. Other states impose no licensing requirement beyond the federal baseline. Attorneys should verify the requirements of the specific jurisdiction before retaining a process server.

Question 3

Can an attorney serve process?

Accepted Answer

In most jurisdictions, an attorney who is a party to the action cannot serve process, because the server must be a non-party. An attorney who is not a party — for example, an associate at the firm who is not counsel of record — may serve process in jurisdictions that permit any non-party adult to do so. However, using a professional process server is generally advisable to ensure proper documentation and avoid any challenge to the server's non-party status.

Question 4

What happens if a defendant refuses to accept service?

Accepted Answer

A defendant's refusal to accept documents does not defeat service in most jurisdictions. Under the majority rule, if the process server identifies the defendant and the defendant refuses to take the documents, the server may leave the documents in the defendant's presence or in close proximity, and service is deemed complete. The server should document the refusal in detail in the proof of service. Some jurisdictions require the server to announce the nature of the documents before leaving them.

Question 5

How many attempts at personal service are required before substituted service is permitted?

Accepted Answer

The number of required attempts varies by jurisdiction and is not always specified by statute — courts typically require a showing of "reasonable diligence" or "due diligence." California courts have generally required at least three attempts at different times of day before authorizing substituted service. New York requires "due diligence," which courts have interpreted as two to four attempts at different times. Federal courts apply a reasonableness standard without a fixed number. Attorneys should document each attempt with the date, time, and circumstances to support a showing of diligence.

Question 6

Can process be served on a Sunday or holiday?

Accepted Answer

Many states prohibit or restrict service of process on Sundays. Some states also restrict service on certain legal holidays. Federal courts generally permit service on any day unless state law incorporated by Rule 4 provides otherwise. Attorneys should check the applicable state statute before authorizing service on a Sunday or holiday, as service made in violation of such a restriction may be void or voidable.

Question 7

How is a corporation properly served?

Accepted Answer

Under FRCP Rule 4(h), a corporation may be served by delivering documents to an officer, managing or general agent, or any other agent authorized by appointment or law to receive service. The most reliable method is service on the corporation's registered agent for service of process, whose name and address are on file with the Secretary of State in the state of incorporation or qualification. Service on a receptionist, mail clerk, or other employee without authority to accept service is generally ineffective and subject to challenge.

Question 8

What is a waiver of service and when should it be used?

Accepted Answer

Under FRCP Rule 4(d), a plaintiff may request that an individual or corporate defendant waive formal service by mailing a notice and request form. If the defendant returns the signed waiver within 30 days (60 days if outside the U.S.), service is deemed complete without the need for a process server. A defendant who fails to return the waiver without good cause must pay the costs of formal service. Waiver is most practical when the defendant is represented by counsel, is cooperative, or is a sophisticated corporate entity. It is not appropriate when the defendant is evasive or the plaintiff needs to establish a specific service date.

Question 9

What must a proof of service contain?

Accepted Answer

A proof of service (also called a return of service or affidavit of service) must typically include: the name and address of the person served; the date, time, and location of service; the method of service used; a description of the documents served; the name, address, and signature of the process server; and, in many jurisdictions, a statement under penalty of perjury or a notarization. Some states require use of a specific court form. A deficient proof of service may be challenged by the defendant and can result in the court quashing service.

Question 10

When must proof of service be filed with the court?

Accepted Answer

Under FRCP Rule 4(l)(1), proof of service must be filed with the court promptly after service is made, unless service was waived. Most state courts impose a specific deadline — for example, Illinois requires filing within 12 days of service; New York requires filing within 20 days. Failure to file proof of service on time generally does not invalidate service but may result in sanctions or complicate the record. Attorneys should calendar the filing deadline as soon as service is confirmed.

Question 11

Can a defective proof of service be corrected?

Accepted Answer

In many jurisdictions, a defective proof of service may be amended to correct technical errors that do not affect the underlying validity of service. Courts distinguish between defects in the proof of service (the document) and defects in the service itself (the act). A proof of service that omits the time of service may be amended; service that was made on the wrong person cannot be cured by amending the proof. Attorneys should move to amend promptly upon discovering a defect, before the defendant raises the issue.

Question 12

What is the consequence of defective service of process?

Accepted Answer

Defective service of process is a jurisdictional defect. A court cannot exercise personal jurisdiction over a defendant who has not been properly served. A default judgment entered against an improperly served defendant is void — not merely voidable — and may be attacked collaterally even after the time to appeal has expired. If the defendant appears and fails to raise improper service as a defense in a timely motion or responsive pleading, the defense is waived under FRCP Rule 12(h)(1).

Question 13

Does service of process toll the statute of limitations?

Accepted Answer

The effect of service on the statute of limitations depends on jurisdiction. In federal court and many states, the limitations period is tolled by the filing of the complaint, not by service. In other states — including California — the limitations period is tolled only when the summons is served. California Code of Civil Procedure § 583.210 requires service within three years of filing, but the limitations period is not preserved unless service is actually made. Attorneys should identify the applicable rule at the outset of litigation to avoid a limitations defense.

Question 14

Can process be served outside the state?

Accepted Answer

Yes. Under FRCP Rule 4(e), an individual may be served anywhere within the United States using the methods permitted by the rule or by the law of the state where the district court is located or where service is made. Most states have long-arm statutes permitting service on out-of-state defendants in actions arising from contacts with the forum state. Service on defendants outside the United States is governed by FRCP Rule 4(f) and, where applicable, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.