In the United States, suing someone, or taking them to court for some other legal action, requires that they be notified that the legal action has been initiated, and just what that action is. This is done by providing them with a copy of the official legal documents filed with the court in a specific manner, called “service of process.” The person or entity instigating the action, the “plaintiff,” is then required to provide proof that the other party, the “defendant,” has been properly served by filing a Proof of Service form with the court. To explore this concept, consider the following proof of service definition.
Definition of Proof of Service
- An official affidavit, signed under oath, and filed with the court by an individual after successfully serving legal documents to someone.
What is Proof of Service
In the U.S., one party cannot take another to court without giving them proper notice of the impending court proceeding. This is done to ensure legal proceedings are run fairly, and that both the plaintiff and the defendant have the opportunity to prepare and present their arguments regarding the case. Since the plaintiff is required by law to notify the other party, a proof of service, also called an “affidavit of service,” must be filed with the court as evidence that proper service of process was accomplished within the time period specified by law.
Proof of Service Form
The proof of service form varies slightly by jurisdiction, as well as by the specific court action within the jurisdiction. The basic information that must be stated on each proof of service includes:
- The name of the court in which the action is filed
- The case name and case number
- The name of the individual to whom the documents were served
- A list of each document served
- The date and time of service
- The manner of service
- The location at which the documents were served
- Whether the documents were served by mail or in person
The individual serving the documents must then sign the affidavit, under penalty of perjury, that he or she did in fact serve the documents as stated in the proof of service. While every court has standardized proof of service forms available, and they are easy to use, an affidavit of service may be written or typed out, so long as it includes the required information.
A court’s standardized proof of service form often includes check boxes that allow the person who served the documents to quickly identify the documents included in the service, such as:
Check all that apply:
- Alternative Dispute Resolution Package
- Civil Case Cover Sheet
- Other ___________________
Who Can Serve Legal Documents
Because of the potential for a plaintiff to falsely state he has served the documents on the defendant, a plaintiff to the legal action cannot serve the documents himself, nor can any other person involved in the case, such as a witness, serve the documents. No matter the method of service, it must be done and testified to by an uninvolved third party.
Service of process can be done by:
- A professional process server
- A county sheriff, marshal, or constable
- A friend, relative, or coworker who is over the age of 18
Methods of Service
The laws in each jurisdiction state specifically what method must be used to serve court documents in different situations. In all cases, the initial court documents, usually the Summons and a complaint, must be personally served, which means they must be personally delivered to the defendant named in the lawsuit. Once the action has begun and properly personally served, subsequent documents in the case may often be served by mail, though there are certain requirements for this as well. It is critical that legal documents be served in the manner specified in the law, or the case may be delayed or even dismissed.
Personal service requires that the documents be personally delivered to the party being served. This means the server hands the papers to that party, though this may take place anywhere the defendant can be located. Personal service may occur at the party’s home or workplace, at a restaurant or store, or on the street. The person serving the papers must ensure the identity of the person they are serving, then hand the documents to him, and inform him that they are court documents.
It is not necessary for the party to accept the documents being served, as this would be a sure and easy for any individual to delay or avoid court proceedings. It the party refuses to take the documents, or closes the door after being told what they are, the server may simply leave the papers on the ground at their feet, or in front of the door. Even if the party tears the documents up and throws them away, service is deemed to have been properly made. Proof of personal service must state the date, time, and location where the documents were given to the party.
Service by Mail
Once the court action is under way, most subsequent documents may be served by mailing them to the other party. The documents must be placed in an envelope that is securely closed, addressed to the party’s address on file with the court, or the address at which that party has requested service to be made. This is often his attorney’s office. There must be sufficient postage on the envelope to cover delivery by the post office, as parties are not required to accept “postage due” mail.
The proof of service by mail must state the address to which the envelope was mailed, what class postage was used (such as first-class mail), and the address from where the documents were mailed. The date of mailing is important, as mailed documents are not considered to have been served until 5 days after mailing in most jurisdictions. This allows enough time for the recipient to actually receive the documents.
Service by Substitution
If several attempts at personal service have been unsuccessful, some jurisdictions allow what is called “substituted service.” There are specific rules as to how many times and places personal service must be attempted, and each must be documented in order to turn to substituted service. Such requirements generally include:
- Minimum number of attempts, usually at least three
- Personal service attempted at the party’s home on different days of the week, and different times of day when that party is deemed likely to be home
- Unsuccessful attempts to serve the party at their place of employment, if known
In this case, the server may leave the documents with an individual over the age of 18 who also resides at the party’s home, or with someone of authority, over the age of 18, at the party’s place of employment. The server must tell the person with whom the documents are left that they are legal papers for the party. Immediately after service by substitution, the server must mail a copy to the party at the address where the documents were left.
Mary attempts to serve divorce documents on her best friend’s husband, Todd. Mary goes to his house four different times, and even attempts to deliver the documents to Todd at his office. Todd is evidently trying to avoid being served, as she is unsuccessful. Mary finally gives the documents to Todd’s boss at the office, telling him they are important legal papers. Mary then places another copy of the documents into an envelope and mails them to Todd at his office. She then documents, on her proof of service, all of her attempts at serving Todd, as well the identity of the person with whom she finally left the papers, and the date she mailed the second copy.
Proof of service by substitution must contain document of all attempts at personal service, referred to as a “declaration of due diligence,” as well as the name and address of the person on whom substituted service was accomplished, as well as the fact that the documents were subsequently mailed. Service by substitution is not considered valid until 10 days after the documents are mailed.
Related Legal Terms and Issues
- Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
- Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
- Summons – An order or citation to appear in court, or to appear before a judge or magistrate.