How to Prove You Were Not Served Properly
A civil lawsuit is considered invalid if the defendant receives no formal notice of the lawsuit. Hence, proper service stands as a vital component of due process, ensuring that court documents are delivered to the defendant in compliance with the procedural requirements. Proper service ensures fair treatment, protects the individual’s legal rights, and ensures the individual participates in the legal proceedings.
In this article, you’ll learn about the legal requirements for proper service, how improper service can affect your case, common reasons for improper service, gathering evidence for improper service, taking legal action against improper service, and the legal implications of improper service.
Understanding Legal Service
The goal of service of process is to notify the defendant of a lawsuit against them and recognize their due process rights. By serving the defendant properly, the court establishes jurisdiction over them, making it mandatory for the defendant to respond to the lawsuit. Additionally, the service of the process helps the individual prepare their defense and participate effectively in the city proceedings.
There are several methods of serving court documents, depending on the case and the availability of the defendant. Some of these methods include:
This involves physically delivering the document to the defendant by a process server. It’s the oldest, yet most effective and reliable method as it involves direct contact with the individual, making it difficult to dispute. Process servers must identify themselves and hand the legal papers directly to the recipient. Personal service remains valid even if the defendant declines the served court papers or discards them.
Service by Mail
Here, you send the court document to the defendant through their certified or registered mail. This method is typically used when personal service has proved impractical. Most times, for service by mail to be considered valid, it requires proof of delivery, such as the defendant acknowledging the receipt of the legal documents.
This involves leaving the document at the defendant’s residence or workplace with someone related to them. The person who received the document must be legally mature enough to understand court documents, otherwise, the service is invalid. Some jurisdictions permit the use of substituted service when the personal method attempts have failed.
Service By Publication
In most cases, service by publication is usually the last resort. It involves publishing the document on the newspaper or any other court-approved publication in the defendant’s county or jurisdiction.
Legal Requirements for Proper Service
The rules and requirements for service of process vary by jurisdiction. For instance, in the federal jurisdiction, the Federal Rules of Civil Procedure (FRCP) govern civil legal proceedings, including the service of process. Most states base their service of process rules on the FCRP but with modifications in various areas including:
Timeframe for Service
In most jurisdictions, the law provides a sufficient timeframe for the serving party to deliver court documents to the recipient. For example, in California, summons and complaints must be served to the defendants within three years after the lawsuit is commenced against them. In New York, you’re required to serve the documents within 120 days after filing with the county clerk.
Person Eligible to Serve
Any individual can serve court documents, provided they’re at least 18 and are lawful citizens or residents in the United States. Also, the individual must not be a party to the lawsuit. However, it’s advisable to hire a professional process server, like On-Call Legal, to avoid service errors that may delay your case and cost you at the end.
A process server is a professional trained to serve court documents. They’re experienced in the laws governing process service and have expertise in ensuring a quick and compliant delivery.
Also, most people hate being served and can do anything to evade service. In this case, the process server may utilize investigative resources, such as skip tracing, to locate the individual and serve them the document properly.
Proper Documentation of the Proof of Service
For the service to be valid, the serving party must properly document the proof of service. It must contain the name of the person served, along with the date, time, place, and method of service. The proof of service must be documented in compliance with the jurisdictional rules and requirements, such as timeframe for filing the document after serving the defendant.
For example, in California, you must file a proof of service within 60 days after serving the defendant. In New York, you must file the proof of service (affidavit) at most 20 days after service. In Oregon, you must file the proof of service within 63 days after the lawsuit. If you fail to do so, the court may send you a notice stating the case will be dismissed if you don’t file the proof of service within the next 28 days.
How Improper Service Can Affect Your Case
A service is improper when the serving party fails to adhere to the rules and requirements governing the service of process in their jurisdiction. Improper service can lead to the dismissal of your case, as the court can only exercise jurisdiction over the defendant on the grounds of proper legal service.
Also, improper service can result in delays and financial losses. The respondent may file a motion contesting the validity of the service. This delays the hearing of your case. Moreover, if the court rules in favor of the defendant, you may face financial sanctions and be ordered to reimburse their attorney fees.
Common Reasons for Improper Service
The serving party may deliver the court document to the wrong individual due to similarity in their names or addresses. If you’re serving court papers, you must properly verify the identity of the intended recipient, otherwise the court may dismiss your case on the grounds of service to the wrong person.
The person serving the court papers may have verified the defendant’s identity, but what if they’ve relocated to a new residence? Without proper verification of the defendant’s current address, you may deliver the document to the wrong address, resulting in the document not reaching the intended individual. This automatically invalidates the service.
Failure to Follow Procedural Requirements
Failure to follow the procedural requirements, like serving the document outside the specified timeframe, makes the service improper. Serving the individual electronically without their consent and court approval may also result in improper service. Again, failure to file the affidavit within the designated timeframe may lead to outright dismissal of the case.
Service to Unauthorized Individuals
In the case of substituted service, leaving the document with the individual who is not related to the defendant, or not deemed mature enough by the law, renders the service improper. For example, in California, the defendant’s relative receiving the document must be at least 18 years of age.
Gathering Evidence of Improper Service
- Personal Testimony: Provide a detailed account of your whereabouts and activities you’re engaged in at the time of the alleged service.
- Witnesses: If there are individuals with you at your location during the improper service, their testimonies can serve as evidence.
- Surveillance: You can provide surveillance footage showing you were not served at the alleged date or that the service was improper.
- Mail Records: If there’s no mail delivered to you or if you haven’t signed the receipt. It can indicate improper service.
- Electronic Records: Do you have emails, phone logs, videos, photos or records showing you were somewhere other than the location of the alleged service? It could serve as compelling evidence to prove improper service.
Taking Legal Action for Improper Service
Consult with Your Attorney
Before you take legal action against the serving party, it’s advisable to consult with your attorney. Your attorney will review the case and provide you with expert advice on how to proceed. Also, the attorney will represent you in court, protect your rights during court hearings, and help you navigate the legal process effectively.
File a Motion to Quash or Dismiss
If you have strong basis and evidence to prove you were improperly served, you may file a motion to quash or dismiss the service. To do this, you first need to draft the motion. Here, you include a caption that identifies the court, the case name and the case number.
Then, write a statement of fact, describing how the service was improper, followed by a legally logical argument explaining why the court should dismiss the case for improper service. Submit the motion alongside your evidence to support your claim.
Attend Hearings Related to the Case
After filing the motion, the court may fix a date for the hearing. Attend the hearing and present your case before the judge. Also, the hearing will give the other party the opportunity to present their own side of the story.
The Implications of Proving Improper Service
If the court rules that you were not properly served, it can potentially lead to several Implications, including:
- Case Dismissal: The court may dismiss the case, that is, terminate the lawsuit, following their lack of jurisdiction over you or the violation of your due process rights.
- Sanctions Against the Serving Party: The court may impose sanctions on the serving party. Sanctions may include monetary fines and ordering the party to reimburse you the attorney fees.
- Re-establishing a Timeframe for Proper Service: Where the court did not dismiss the case, they may give the serving party another opportunity to serve the documents in compliance with the procedural requirements.
Preventative Measures to Avoid Improper Service
Update and Keep an Accurate Record of Your Address and Whereabouts
To ensure the court papers are delivered to you, keep accurate records of your address. Provide the correct address when registering with a government agency, banks, insurance, your employer, religious organization, social group, or any other relevant entities. Also, update your address with these entities when you move to a new location.
Inform Close Contacts of Any Pending Legal Issues
Inform your family members, close friends, or neighbors of any pending legal issues that you may be involved in. With this awareness, they can assist you by receiving the documents on your behalf and promptly reminding you of the case.
Install Surveillance Measures
Surveillance footage serves as strong evidence in the law court as it records events without any manipulation. Put these cameras both in your home and business premises to monitor and record any service attempts.
Proper service is a vital part of due legal process to ensure fair treatment and protect the legal rights of the defendant. The defendant has the right to receive notice of the lawsuit against them in compliance with the procedures and requirements. They also have the right to contest the validity of the service if they believe it’s improper. However, all parties, including the serving party and the defendant, must follow all proper legal procedures to ensure fairness in legal proceedings.