How to Prove Improper Service

September 21, 2023

Service of process is the process of delivering legal documents to an individual or entity, demanding their appearance in court. Proper service essentially kickstarts a lawsuit and gives the court personal jurisdiction over the defendant as they’re bound to appear in court. Service of process is so crucial that if you conduct it improperly, the court may dismiss your case or impose severe sanctions on you.

Let’s dive in to understand what service procedures are, common mistakes that lead to improper service, consequences of improper service, and how to challenge improper service.

Understanding Proper Service Procedures

Understanding Proper Service Procedures

To protect a defendant’s due process rights and preserve judicial integrity, there are rules and procedures that govern the service of process. These rules vary by jurisdiction. For example, Massachusetts has a 90-day deadline for service of summons and complaints while California has a 60-day deadline.

It’s important to understand the specific laws guiding the service of process in your jurisdiction to make informed decisions and stay compliant. Service of process can be done using different methods which may include:

Personal Service

A process server, a law enforcement officer, or a professional process server, physically delivers the legal papers to the person to be served. It’s the the most common and most preferred method of service because it upholds the principle of due process, ensuring direct contact and communication with the right person, resulting in fair notice.

Substituted Service

Sometimes, the recipient may not be reachable or attempt to evade service. In such cases, substituted service involves leaving the legal documents with a person of suitable age at the recipient’s home or office. This method requires court approval which depends on whether you can establish that personal service is impossible.

Electronic Service

This method allows the use of electronic or digital media to serve court documents. This is typically done through email or any other secure online platform. In most cases, the recipient must consent to this method, otherwise, it may count as improper service.

Service by Publication

When other methods of service have proved impractical due to the recipient’s evasion of service or unavailability, service by publication may become the last resort. This involves publishing the documents in local publications or newspapers. This method is common in cases such as divorce proceedings when one spouse cannot be located.

Common Mistakes that Lead to Improper Service

Common Mistakes that Lead to Improper Service

Serving the Wrong Person or Entity

This may happen when the process server mistakes the identity of the recipient for someone with a similar name or delivers the documents to an outdated address. Service to the wrong person provides the defendant with a legal ground to contest the service, leading to delay in court proceedings or even case dismissal.

Hence, it’s crucial to research and ascertain the recipient’s identity and address as serving the wrong person gives the defendant a legal ground to contest the service process.

Failure to Serve Within Required Timeframes

Jurisdictions have specified timeframes for serving summons and complaints. Failure to adhere to these timeframes may result in a violation of the due process rights of the opposing party. The defendant may capitalize on this mistake to file a motion to dismiss for insufficient service.

Better understand the hours a process server can serve you in California.

Incorrect Methods of Service

This happens when the defendant is served using methods other than personal service without the authorization of the court. Also, serving the defendant through electronic means without their consent or court approval amounts to improper process service.

Not Providing Necessary Follow-up Documentation

After serving the defendant, the serving party must file an affidavit or proof of service detailing how and when the defendant was served. The document serves as evidence of the completion of correct service. Failure to file the document can invalidate the service and lead to the dismissal of the case.

Consequences of Improper Service

Consequences of Improper Service

Dismissal of case

The court does not have jurisdiction over the defendant if they’re not properly served, resulting in the dismissal of the case. In other words, you lose the opportunity for a court hearing. Even worse, you may not be able to file the complaint again if the court dismisses the case with prejudice.

Delays in legal proceedings

Where the defendant disputes the validity of the service, the subsequent case may be rescheduled. Also, the court may grant the defendant’s motion to dismiss or order the serving party to correct the service. This causes delays in the legal proceedings, extending the case timeline and may even lead to extra costs.

Potential Financial Penalties

The court may impose monetary sanctions on the serving party for improper serving process, especially if it was intentional or reckless. The court may also compel the plaintiff or their attorney to reimburse the defendant’s legal expenses incurred in addressing the service issue. This penalty serves as a deterrent and also as compensation to the defendant for violation of their due process rights.

How to Challenge Improper Service

How to Challenge Improper Service

File a Motion to Quash Service

If you believe you were not properly served, file a motion asking the court to quash the service. You must file the motion within the specified deadline to keep it valid. In the motion, explain to the judge how you were served and why the service was improper. For example, if you were improperly served through electronic means without your consent, you may include this as a reason. 

Support Your Claims With Evidence

To strengthen your motion, support your claim of insufficient service with relevant evidence. This includes affidavits, statements, records, receipts, and any other legal document that highlights the errors and deficiencies in the service of process.

Present Witnesses to Attest to the Improper Service

If you have a witness to attest to the improper service, you may ask the court to subpoena the person to give their testimony. The witness will present their own part of the case and recount what happened, confirming the errors and deficiencies in the service.

Seek Legal Help

Consult with your attorney and explain the context of the service to them. They will guide you on the best possible steps, point out errors that can bolster your motion, and help you organize your strategy. Your attorney may also need to represent you in court during the motion hearing to defend your case and protect your rights throughout the proceedings.

How to Prove Improper Service with Evidence and Support a Claim

How to Prove Improper Service with Evidence and Support a Claim

Photographs or Videos:

Provide relevant photos or videos that either support your claim of improper service or contradict the counterclaim of the serving party. For example, if the plaintiff claims you were present during the service on a specific date, provide a photo that proves you were in another location on the said date and time.

Affidavits or sworn statements from witnesses:

Include the testimonies of witnesses who were present during the service to confirm the flaws in the service.

Documentation and Records:

This includes surveillance footage that proves where the defendant was at the time of the service.

Return of service inconsistencies:

Examine the proof of service for any inconsistencies, errors, or missing details.

Postal records:

In the case of service by mail, request postal records that provide the details of the delivery including the tracking information and receipts to verify whether the service was completed correctly and within the specified timeframes.

Legal Defenses to a Claim of Improper Service

Validate the Service Procedures Used

If the serving party believes the process server served correctly, they may assert that the service procedure was entirely valid and comply with relevant legal requirements in the jurisdiction. The party should present evidence to support their counter-argument. This may include the correct dates and time of service, proof of proper method of service, and documents showing compliance with relevant requirements.

Show Substantial Compliance Regardless of a Minor Error

Here, you can acknowledge a minor error in the service but also argue that there was substantial compliance to the procedural requirements. You may argue that this minor error does not impede the recipient’s right to due process nor limit them from understanding the details of the document served to them.

Include evidence to prove that these minor errors are inconsequential to the validity of the service and cite any past court rulings on similar cases to support your claim.

Establish Proof of Receipt of Document

Provide evidence to prove that the defendant received the document despite the service error and that no prejudice or harm resulted from the error. This evidence may include correspondence, communications, or receipts acknowledging that the defendants had a fair notice of the legal action and therefore had the opportunity to defend themselves.

Next Steps After Proving Improper Service

Re-serve Using a Correct Method

If the court grants you the option to correct the service by re-serving the document, follow the correct requirements and methods in the re-service. Rectify the errors in the initial service to provide the recipient with fair notice and the opportunity to defend themselves.

Extend the Timeframe for Response or Action Due to the Improper Service

If the wrong service has impacted the defendant’s ability to respond within the specified timeframe, the court may extend the time to mitigate any possible harm or prejudice that may arise as a result of the improper service. This will help the defendant to prepare their defense and participate effectively in the proceedings.

File a Claim Against the Serving Party or Entity if There was Intentional Wrongdoing

If there is compelling evidence of intentional misconduct in the service of process, the defendant may file a lawsuit against the serving party. The basis for the lawsuit may include abuse of process, malicious prosecution, or intentional infliction of emotional distress. The defendant may also seek damages for any emotional, physical, or legal harm they incurred as a result.

Tips to Avoid Issues with Service

Hire an Experienced Process Server

Professional process servers are individuals or agencies that specialize in serving court documents. Process servers are grounded in the laws governing the service of process and they have experience in locating individuals and navigating service challenges. Hiring a process server will save you a lot of costs and time by ensuring compliant and seamless service of documents to the defendant.

Ensure Up-to-Date Addresses for All Parties

The defendant may change their address due to relocation, change of job, or business factors. To ensure service accuracy and avoid mistaken addresses, verify the defendant’s address to ensure it’s up to date.

Keep Detailed Records of All Service Attempts and Successful Services

Maintain detailed records of every service attempt and the successful services. Document the dates and times of the service attempts, location where the service was completed, method of service, evasions, refusal, and other challenges encountered during the service attempt. These records will serve as reference and evidence in the case of a potential dispute over the validity of the service.

Familiarize Yourself with Local and State Rules Concerning Service of Process

Find out the acceptable methods of service, timeframes, and other requirements for service of process in your locality. This will help to ensure proper service, averting possible legal complications that may result from improper service.


Proper service of process gives the court jurisdiction over the defendant and the authority to hear the case. It also ensures the protection of the defendant’s due process rights, providing them a fair notice of the legal action against them. The consequences for improper service can be severe, so it’s crucial to follow proper guidelines for service of process to ensure fairness in legal proceedings.

Process servers play a pivotal role in ensuring process service compliance. Hence, ensure you hire the right process server to guarantee correct service of process. At On Call Legal, our experienced team is dedicated to helping you stay compliant in your court case, providing expert guidance throughout the legal process. Reach out to us today through any of your offices or by phone for a seamless legal assistance.

On-demand legal services with arranging services from eFiling to organizing and preparing your subpoena for records and/or personal appearance and much more.

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Proud member of the California Association of Legal Support Professionals (CALSPro), National Association of Professional Process Servers (NAPPS) and Serve-Now Network of Process Servers

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