US Federal Rules - Service of
Process Standards and Due Diligence
Let’s begin with a story. David wants to sue Jack for a breach of contract. So, David formally files a complaint in court. But to commence the litigation, Jack, who is the defendant, will have to be summoned. The procedures of serving such notice of summoning and complaint are called the ‘service of process’.
By due diligence service of process, the court ensures its jurisdiction to try the case at hand. Service of process is an essential step to start the lawsuit. If the parties are not served with the proper notice within the time the case cannot be initiated.
So, what are the standards of the due diligence service process?
As per rule, a Court is prohibited to exercise its jurisdiction over any party unless that party is served with proper notice. So service of process is considered as a legal procedure to hand over the notice paper; such as complaints and summon to the defendant. Service of process is launched by the plaintiff.
There are few standards of process serving which are mentioned in Rule 4 of Unites States Federal Rules of Civil Procedure. Firstly, the summon must be served with a copy of the complaint to the defendant or to the person who is an agent of the defendant.
Secondly, defining the process server (person who will be delivering the summon) is a very significant thing to do. Any person who is not a party to the lawsuit and is at least 18 years old is eligible to be the process server. The plaintiff may personally appoint someone as the process server or can request the court to appoint someone suitable. Upon the plaintiff’s request, the court may direct the United States marshal or deputy marshal or someone appropriate to serve the process.
Thirdly, the ‘waiver of service’ on the part of the defendant is vastly encouraged by US courts. When the defendant agrees to waive service he/she gets some extra advantages, such as he/she receives 60 days instead of 20 days to serve the answer against the complaint. But if the defendant does not comply with the terms of waiving service then he/she is required to bear all the cost of the service process.
‘Proof of process service’ is a prime thing to show other than sending summons. The process server will sign an affidavit for assuring the completion of the service process and this affidavit will be presented to the court by the plaintiff.
Due diligence service plays a big role!
Now, a process server may try to escape responsibilities just by obeying the coded
requirements; but this is not enough! The job of a responsible process server is a very notable one as he/she needs to make sure all reasonable ways have been met to communicate with the defendant or the agent of the defendant.
In fact, due diligence service is expected from every credible process server. Diligence service requires the process server to look for all other reasonable alternatives to serve the papers. Losing heart too early only exposes the poor quality of the process server.
‘Personal service’ is the most justifiable way to serve papers where the process server
physically meets the defendant and delivers summon. But if the defendant is not found in the given address then the process server is supposed to look for possible alternatives. He/she can leave the documents at the defendant’s residence at the hand of a person of suitable age and
If this too fails, then with the court’s permission the process server will attempt to reach the defendant through out-of-the-ordinary methods. Service by electronic mail or publication would do the work in such a case. Service by publication is generally the last resort to rely on. When the court is convinced of ‘due diligence service’ from the part of the process server
only then the court allows going for service by publication.
One needs to keep in mind that due diligence service is not any concrete checklist to follow; it is more of a strategic mind plan of the process server to get hold of the defendant legally. As per formalities, a process server may give up after one attempt. But as per the due diligence principle, the process server will have to try to communicate the defendant multiple
times and in all plausible ways.
For example, if the defendant changes his/her location or is spending the holiday on a beach, the process server might have to go to his/her workplace to finish off the service.
The accomplishment of the service of process with due diligence is the key to take the litigation forward. Without diligent service of process, the defendant might stay in the dark for a long time. Consequently, this delayed lawsuit gets alarming as the famous saying
goes, ‘Justice delayed is justice denied'.