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What Happens if Someone Refuses to be Served?

What Happens if Someone Refuses to be Served

Successfully filing a lawsuit and following it up to trial is never straightforward and can be costly, time-consuming, and complex. Unless your case involves the small claims court, it's always highly recommended to have an experienced legal representative by your side all through the process for expert guidance. Before a case proceeds to trial, crucial initial steps must be fulfilled, among them notifying the defendant through a process legally called process serving. If you're looking for a process server around the San Francisco Bay area, D&R Legal Process Service, LLC can do a superb job on your behalf.

Service of process can be confusing, and it's of utmost importance to comprehend all aspects surrounding it, such as what needs to be served and at what stage, who should do the serving, and the viable methods of service. Before answering what happens when a defendant refuses to be served, let's first understand what process service entails.


What it Means to be Served

The "due process" clause of the fourteenth amendment requires a person to be appropriately notified when a case is instigated against them in a court of law or an administrative court. Only then will a case be justified for hearing. The procedure is called process service, and the documents delivered should describe in detail the legal action in question. Some of these documents may include petitions, injunctions, subpoenas, writs, summons, and other relevant court documents. A defendant is "served" upon successful receipt of the papers delivered by a person, not a party to the case.

Personal service is usually the first service method for delivering the court papers to a defendant as it is the most reliable. It means finding the defendant in person wherever they are and handing them the documents. If, for some reason, they can't be located, other methods of service may be used depending on your state's process serving laws.

Who is Certified to Serve Papers?

Initially, serving was limited to people authorized by law like the sheriff, police, and court agents. However, they were overwhelmed with increasing cases with time, and legislation was changed. Presently, many states allow any US citizen residing in the state the case is to be heard in who is non-partisan to the case in question and above the age of 18 to be viable process servers. However, as we've mentioned earlier, process serving laws differ from state to state. Some only allow licensed or registered process servers, while some need them to post surety bonds.

Process servers must be 18 years or older in California and not a party to the case. They are expected to serve the defendant in the time window required and afterward fill out a proof of service form that informs the court whom they served, when, where, and how. Finally, they should return the proof of service to the plaintiff to file it with the court. Either of the following people can qualify to be process servers in California;

  • A professional process server
  • A county sheriff or marshal
  • A friend or relative
  • A coworker
  • Anyone over 18 who isn't a party to the case

What Happens When a Defendant Refuses to be Served?

Sometimes defendants can go to great lengths to avoid being served. They may deliberately make themselves hard to locate with the wrong idea that stalling the process service will lead to the termination of the case. Others may outrightly refuse to be served by employing tactics such as not answering their door or claiming that they are not the defendant. Suppose the process server cannot serve the defendant despite several attempts at diligently searching for them. In that case, a court has the discretion to order alternative or substitute methods of service to be employed. In some cases, deliberately avoiding being served may lead to legal action against the defendant in some states.

The bottom line is that a defendant can rarely benefit from avoiding being served, and although they might slow down a lawsuit procedure, they can never stop a lawsuit from proceeding. It almost always leads to more prolonged and costly litigations, further disadvantaging the defendant. Furthermore, additional expenses like service charges for several process server attempts can be charged on the defendant.

Alternative Service Methods

Most states require process servers to prove that they used reasonable efforts to look for and attempt to serve the defendant before a court issues a go-ahead for alternative or substitute methods of service. All the failed attempts must be documented accordingly and include all relevant details such as date, time, and location. The most common alternative service methods in most states include the following;

Drop Serve

Drop serves are standard alternative process servers used to serve a defendant who refuses to be served in California. The process will have been achieved whether the defendant picks up the papers or ignores them. The process server will have to declare in court, proving that they had good faith in personally trying to serve the party.

Substituted Service of Process

Substituted process service is when a process server serves a defendant through close family members or work acquaintances with regular contact with them. A judge can approve a substituted service of process if it is proven that a defendant has been consciously avoiding getting served despite several diligent attempts by the server.

Certified Mail

A court can also approve a process server to serve a non-cooperative defendant through their certified mail which can be used as evidence that the papers were successfully received, even if they don't acknowledge the receipt. The documents should be mailed to their last known address.

Local Publication Serve

A judge can approve a serving through a local publication like a newspaper should a defendant continue evading or blatantly refusing to be served. The local publication should cover the area where the defendant is proven to be located. Copies of the publication should be kept as proof.

Social Media Serve

This is the latest entry (but least popular) in the methods of process service that a judge can approve. This involves using popular social media platforms like Facebook and Twitter to serve a defendant. Proof of service will still be required. 

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Sunday, 02 October 2022
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