Serving the Defendants
This section deals with the actual notice given to defendants when they are being sued and what happens if there is not proper notice.
All courts will require you to provide proof that you have actually given notice of the lawsuit to all of the defendants. The courts strive for actual notice to each party.
You are not allowed to file a lawsuit against a party or parties and then never let them know of the court date. Regardless of how at fault a defendant is, our Legal System is founded on the principles of due process. That is, a right to present both sides of a case.
It is critical before going to the courthouse to fill out the petition or complaint that you have the addresses of all of the defendants with you. In most courts, you can elect to have the court personnel serve the defendants. This takes time and costs a fee, but often you can be sure that it is done properly.
Once you file your petition or complaint, and you decide that you want to serve the defendants yourself, you must serve [hand] a copy of the lawsuit to each of the defendants. If any defendants are persons, you should have a person over the age of 18 and of sound mind, take your papers to the person's address, either home, business or wherever. This person must be able to come to court and tell the judge he/she actually handed the papers to the defendant, the defendant actually took possession of the papers and the date, time and place this occurred. You should be concerned that this person make a good appearance and be believable, in case the defendant tells the judge he/she never received the papers. Usually the court will require this person to file a document called a Proof of Service with the Small Claims Court.
You cannot simply leave a complaint in a defendant's mailbox. In most courts, First Class mail is not enough either nor is throwing it in the front yard or leaving it on the windshield of the car.
Hand delivery is preferred. Leaving the paperwork at work may be at enough if a person says they will give it to the defendant, but this is not recommended. Certified Mail, Return Receipt Requested is okay, but only if the person you are suing signed for it. [Note: There may be a question if another person signed for it.] Leaving it at home address with a person known as wife, may be enough.
For a corporation, you must get it to named defendant officers, or to their secretaries or receptionists. The courts usually use the rule that delivery "Must be contemplated to get to defendant officer(s)." Thus, delivery to the personal secretary of the president of a corporate defendant is likely proper service. But, leaving the paperwork with the receptionist on first floor of a ten story building owned by corporation, may cause problems.
Sometimes defendants will avoid service or avoid you. You know they are in the house, but they will not answer door. If this happens you may be able to use substituted service. That is making three or four or more unsuccessful attempts to the known home address, or business address and then leaving a copy contemplated to get to defendant. This area is tricky though, and judge may not allow it. Also, you cannot wait until person is on vacation and then make the four (4) attempts.
Points to Remember
- All courts require proof that you have actually given notice of the lawsuit to all of the defendants.
- To serve a defendant, you must usually hand a copy of the lawsuit to them.
For proper service, hand delivery is preferred. In many states, you may use Certified Mail, Return Receipt Requested, but the person you are suing must sign for it.