Service of process

Each legal jurisdiction has rules and discrete terminology regarding the appropriate procedures for serving legal documents on a person being sued or subject to legal proceedings. In the U.S. legal system, service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant), court, or administrative body in an effort to exercise jurisdiction over that person so as to force that person to respond to the proceeding in a court, body, or other tribunal. Notice is furnished by delivering a set of court documents (called "process") to the person to be served.

Each jurisdiction has rules regarding the appropriate service of process. Typically, a summons and other related documents must be served upon the defendant personally, or in some cases upon another person of suitable age and discretion at the person's residence or place of business or employment. In some cases, service of process may be effected through the mail as in some small claims court procedures. In exceptional cases, other forms of service may be authorized by procedural rules or court order, including service by publication when an individual cannot be located in a particular jurisdiction.

Proper service of process initially establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. The defendant may contest the default in the defendant's home state. Service of process must be distinguished from service of subsequent documents (such as pleadings and motion papers) between the parties to the litigation.

Service of process in cases filed in the United States district courts is governed by Rule 4 of the Federal Rules of Civil Procedure. In England and Wales, the rules governing service of documents are contained within Part 6 of the Civil Procedure Rules 1998 (as well as the Practice Directions). In Canada the rules vary from province to province and can be governed differently depending on what the type of case (i.e. family, small claims, criminal, etc.).

Service on a defendant who resides in a country outside the jurisdiction of a court must comply with special procedures prescribed under the Hague Service Convention if the recipient's country is a signatory. Service on defendants in many South American countries and some other countries is effected through the letter rogatory process. Where a defendant's whereabouts are unknown, a court may permit service by publication, usually in a newspaper.

When an individual party to be served is unavailable for personal service, many jurisdictions allow for substituted service. Substituted service allows the process server to leave service documents with another responsible individual, called a person of suitable age and discretion, such as a cohabiting adult or a teenager. Under the U.S. Federal Rules, substituted service may only be made at the abode or dwelling of the defendant. California, New York, Illinois, and many other United States jurisdictions require that in addition to substituted service, the documents be mailed to the recipient. Substituted service often requires a serving party show that ordinary service is impracticable, that due diligence has been made to attempt to make personal service by delivery, and that substituted service will reach the party and effect notice.

Another method of substituted service is "service by publication" also called "constructive service" in some jurisdictions. Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, or unknown (such as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence". Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address. Service by publication usually involves placing the petition for divorce and the summons to a missing spouse in a local newspaper.

In divorce cases, most states that permit service by publication will require due diligence to locate the missing spouse, which can include verifying with the post office that there is no forwarding address; contacting in writing all friends, relatives, and former employers of a spouse who may know the spouse's current address; checking all jails and prisons for any record of a spouse; and checking military records for a spouse.