Don’t Bother Avoiding a Process Server

By Nelson Tucker

Isn’t it amazing that some people think that if they avoid service of process that a lawsuit filed against them will go away?  Litigation will not disappear unless it is either settled or the time for service elapses.  Avoiding service usually makes things worse and can result in additional costs to the defendant while evasion only delays the inevitable.

 

How do I know?  I have a registered process server for the past 35 years.  While the vast majority of services are routine, a few pose some significant challenges in getting them personally served.

 

[“You’ll never be able to serve me personally!” claimed the defendant. 

The next evening he was served leaving his favorite restaurant with his family.]

 

Some defendants are skilled at avoiding service.  Many are experienced because of the number of lawsuits filed against them. For example, a celebrity was contacted through his Twitter account and was advised that he would be served in public unless he agreed to a confidentially arranged service. “You’ll never be able to serve me personally!” claimed the defendant.  The next evening he was served leaving his favorite restaurant with his family.

 

Here are the primary methods for completing a service of process assignment on a defendant:

 

1.       Personal service:   In most states that means handing the documents to a defendant, whether they accept the papers, or not.  There is ample case law that allows for the documents to be dropped at the feet of the defendant who refuses to accept service.[1]  It is still personal service since the act of leaving the documents within reasonable proximity to the person being served is the key element of service[2].

2.       Substituted service:  This simply means handing the documents to a person of suitable age and discretion (in the absence of the defendant) at an address, in California for example, where the defendant either resides, works, receives mail, or where a security guard denies access to the premises.[3]  Service can also be made by serving the agent of a celebrity if the defendant (celebrity) or agent agrees. Most attorneys are not aware of a provision that allows for substituted service at an address on file with the DMV, even if the defendant no longer live there![4]

3.       Service by Publication.  After a diligent attempt at other methods of service and not knowing of the existence of a valid address for service, a court order can be obtained allowing for service by publishing proper notice in a local newspaper for 4 consecutive weeks.

 If a defendant is made aware of the alternatives to personal service, they are more likely to agree to voluntarily accept service.  That can be accomplished by leaving a “notice” at their known address which explains the various options available to the process server.  It is utilized only if the process server has clear evidence that the defendant is intentionally avoiding service of process.

 

Here is an excerpt of a notice we use in California:

                ”Should it become necessary, due to your documented failure to respond, the Court may award costs against you for any or all of the following:

·         Stake-out of your home or business by a licensed private investigator or registered process server;

·         Service at your place of employment by leaving the documents with the person in charge of the business;

·         Service at your residence by leaving the documents with any member of the household who is at least 18 years of age;

·         Investigative costs to determine another place for service;

·         Service by publication in a local newspaper;

·         Service by means of break-in by a Sheriff, upon Court Order;[1]

·         Or, any other alternative legal means of service.”

 

Upon reading the full “Notice to Defendant” it becomes clear that is it in the best interest of the defendant to contact the process server to arrange for service at a convenient time and location.

 

There is an old adage in process serving circles, “You can run but you cannot hide.”  Avoiding service will only delay the inevitable and will surely result in additional costs to be payable by the defendant.

 

Nelson Tucker is CEO of Process Service Network located in the Los Angeles area.  He has been a process server and owner of a legal services firm for the past 35 years.  His firm specializes in international and hard-to-serve cases, including celebrities and heads-of-state.  He may be contacted at nelson@processnet1.com  .

---

[1] In re Ball (1934) 2 Cal App 2d 578,579, 38 P 2d 411

[2] Crescendo Corp. v. Shelted (1968) 267 Cal App 2d 209,212, 72 Cal Rptr 776

[3] California Code of Civil Procedure, §415.20, §415.21

[4] California Vehicle Code §1808.21(c)

[1]Los Angeles County Sheriff Handbook