Common Law System in Process Serving

Common Law System in Process Serving

Sheriff’s deputies are frequently used for personal service of civil documents.

In most states, a person process serving must be at least 18 years old and not a party to the litigation.

Most jurisdictions require or allow a court official, such as a sheriff, marshal, constable, or bailiff, to serve process. Private process servers may be required to obtain a license, as is the case in New York City, Alaska, Arizona, California, Georgia, Illinois, Montana, Nevada, and Oklahoma. Process servers in Arizona must apply for certification with the clerk of the Superior Court in the county where they live. Non-resident applicants are welcome to apply in any county. Texas process servers are currently certified by order of the Texas Supreme Court and regulated by the Process Server Review Board, which is comprised of industry members authorized by the court.

In other jurisdictions, a court order is required to allow a private person to serve process. Many private investigators serve as process servers. Texas and Florida also have a pre-certification training course that must be completed.

A license of this type is required in Rhode Island, where an applicant must complete 90 days of training with a constable with “full powers.” After 90 days of training, a test is given at the local courthouse based on the laws included in the constable manual. After passing the written exam, an applicant will be scheduled for an oral interview with the disciplinary board. If they find the applicant competent, they will make a recommendation to the chief judge, who will then appoint someone with “limited power.” These constables can only serve in the county to which they have been appointed. After one year, a limited power constable can apply for full arrest, eviction, and statewide service powers.

Absent court permission, personal process is required in divorce and similar matrimonial law actions in New York State.

The defendant must be personally served with the divorce papers unless the court grants some other method of service. It is important to note that there are specific requirements for service of process in a divorce action.

The Federal Government (United States)

Rule 4 of the Federal Rules of Civil Procedure governs the service of federal civil process in the United States. A federal civil summons and complaint may be served by anyone who is at least 18 years old and is not a party to the case. This general rule also applies to the service of federal subpoenas under Rule 45 of the Federal Rules of Civil Procedure.

Systems of civil law

Service of process is generally performed by the court in civil law jurisdictions, which include all of Continental Europe and the majority of Asian countries. Depending on the jurisdiction, this can be done in person by a bailiff or by mail.

International assistance

The Hague Service Convention of 1965 governs the international service of foreign judicial and extrajudicial documents in general. Prior to the Hague Service Convention, service of process in civil cases was generally accomplished through a letter rogatory, a formal request from the court in the country where proceedings were initiated or were in progress to a court in another country where the defendant resided. As the request had to be made to the foreign minister (the Secretary of State in the United States) of the defendant’s country by the foreign minister of the originating court, this procedure generally required the use of consular and diplomatic channels.

Since 1965, member states have designated a central authority for process service, and requests are directed there. Furthermore, many states permit direct service by mail or personal service by a person otherwise authorized to serve process without the involvement of local courts.

Acceptance of service agent

In some cases, delivery to an agent for acceptance of service, also known as a “registered agent,” can serve in place of personal service on the principal party to be served. A registered agent is a person or company who has been pre-authorized to accept service on behalf of the served party. Most corporations, for example, are required by law to maintain a local agent of record for acceptance of service in each jurisdiction where they actively conduct business with the public. Searching company filings with appropriate state corporate records or business registration agencies (often the business entity division of a state’s secretary of state) can usually reveal the identity of the agent for service. In general, the public can search these business registration records on the secretary of state’s website.

In the United Kingdom, an agent for acceptance of service is commonly referred to as a process agent, and the relationship is contractual rather than statutory.

Service restitution

Following service of process, the responsible officer or process server must typically file a return of service, proof of service, or affidavit of service with the court (or convey one to the plaintiff to file with the court). The return of service indicates the time and location of service, the person served, and any additional information required to establish that service was performed properly. It is signed by the process server and serves as prima facie evidence that effective service of process was made.

A return or affidavit of service filed by a process server other than a sheriff or constable must also clearly state the county in which the process server is registered, according to Arizona Court Rules. On their returns/affidavits, many Arizona process servers include their certification number. The clerk of the superior court in each county assigns certification numbers.