Service of ProcessWhat is Service and How is it Accomplished?
Any time a civil action is started, the opposing party must be “served” with papers. This legal rule applies in all types of civil actions. Divorce, paternity suits, civil lawsuits, custody suits, debt collection suits, and evictions are examples of actions that cannot begin until the opposing party is properly served. In a contract dispute, car crash case and other civil lawsuits, the person bringing the suit is called the “plaintiff.” The person being sued is called the “defendant.” In divorce, paternity, custody, child support and other family law actions, the person filing the action is called the “petitioner,“ and the opposing party is the “respondent.”
The rules for serving the other side are governed by the Arizona Rules of Civil Procedure. Rule 4 discusses what must be done to issue a “summons” at the beginning of a court action. The Rule states that a person commencing a civil action must first file the complaint or petition, then have a summons issued by the clerk of the court. Once the clerk has signed and affixed the court seal to the summons, the action is ready for service. The purpose of the summons is exactly what it sounds like. It is to summon the defendant/respondent to court to answer the action being filed. Among other things, the summons must state: the name and location of the court, the identities of the parties, the time and place for the respondent or defendant to appear and defend, and if an attorney is involved, the name and address of the attorney. In this article, we will not be discussing service on corporations or government agencies. We will be talking about individuals who are either suing or being sued, about people in family law court, or about people being sued by collection agencies or being evicted from their homes. It is important to know the rules, because lack of proper service is a defense to any civil action.
Once the summons is issued, the petitioner or plaintiff must serve the opposing party with the documents. Rule 4(d) tells us who is permitted to serve these legal documents. “Generally, service of process must be made by a sheriff, a sheriff’s deputy, a constable, a constable’s deputy, a private process server certified under the Arizona Code of Judicial Administration §7-204 and Rule 4(e), or any other person specially appointed by the court. Service of process may also be made by a party or that party’s attorney if expressly authorized by these rules.”
You cannot just walk up to your ex-husband and hand him a petition for back child support. That is not legal service. Neither can you hire a friend to serve the papers. Your landlord cannot put eviction papers on your door and consider you served. More is required. Whatever action is filed, it cannot begin until the respondent/defendant is legally served.
The next rule, Rule 4.1 covers waiver of service and serving an individual. You can ask the opposing party to waive service by signing and returning a document called “waiver of service.” Why would someone be willing to sign the waiver? Perhaps, the individual wants to avoid dealing with a process server, but more often it happens in situations like divorce where the individual knows the action is being filed and simply wants to get on with it
Rule 4.1(d) covers serving an individual. If the opposing party is willing to sign a waiver of service, you can avoid service all together. More often, the defendant/respondent is unwilling to waive service. In that event, service is proper if a qualified person (1) delivers the summons and pleading personally to the person being served, or (2) leaves a copy of the documents at the defendant’s/respondent’s “usual place of abode” by delivering them to a person of suitable age who lives at the residence. In other words, the process server or sheriff’s deputy can either hand you the documents, or he can give them to an adult who lives with you, someone like a roommate or a girlfriend. He cannot give them to your teenage son, and he cannot leave them at the door. Once the papers have been properly served, the process server files an affidavit called “return of service’ with the court. Time limits begin to run after the defendant/respondent is served.
Alternative Means of Service
There are circumstances when the court will authorize alternative means of service. That issue is covered by Rule 4.1(k) and Rule 4.2. Alternative service is not valid without the authorization of the court. The court may authorize service by mail if the opposing party lives in another state at an address known to the plaintiff/petitioner. Regular first-class mail is not enough. Rule 4.2(c) states: “the party may serve the person by mailing the summons and a copy of the pleading being served to the person at that address by any form of postage-prepaid mail that requires a signed and returned receipt.” Once the filing party receives the signed, return receipt, he or she must file an affidavit with the court attesting that the opposing party lives in another state, that the summons and pleadings were properly mailed, and that the recipient signed a return receipt and sent it back to the filing party. The signed, return receipt must be attached to the affidavit.
In some cases, the court may authorize service by publication. Rule 4.2(f) allows service by publication when the following circumstances exist: The last known address of the person to be served is outside Arizona, but, (1) despite diligent efforts, the serving party is unable to find the opposing party’s current address; or, (2) the opposing party has intentionally avoided service; and, under the circumstances, service by publication is the best option.
You will often see service by publication in divorce, child support, or custody actions when the respondent has moved away and the parties have lost touch with one another. You may also see it in civil fraud actions and car crash cases where the defendant has disappeared. Service by publication requires specific authorization from the court. The party bringing the action publishes a copy of the summons and a statement detailing how a copy of the pleadings can be obtained. The notice is published once a week for 4 successive weeks in a newspaper published in the county where the action is pending. The filing party completes service by supplying an affidavit to the court describing the manner and dates of service by publication. Service is considered complete 30 days after the initial date of publication. In truth, the opposing party rarely sees the publication. The idea behind the practice is that a family member or friend may see the published notice and send it on to the opposing party.
As more and more people get their news from the internet rather than newspapers, service by publication has become largely ineffective. We can expect the rules to change sometime in the future. Perhaps, we will publish the notice on the internet on a court specified site.
Service in Eviction Cases
If a tenant fails to pay rent, the landlord can begin the eviction process with a “five-day letter,” a notice that informs the tenant of the default and tells him he has five days to pay everything due or the lease will terminate. The letter can demand late charges and penalties authorized under the lease in addition to the rent. If the problem is another major breach of the lease rather than unpaid rent, the landlord must give a 10 day notice. The notice letter can be handed to the tenant or to someone who lives with him. It may also be mailed by registered or certified letter with return receipt.
If the tenant fails to pay the rent and penalties or to cure the material breach of the lease, the landlord can file a lawsuit called a “forcible detainer action.” Forcible detainer is the technical name for eviction. The landlord will use a private process server, sheriff’s deputy or constable to serve the tenant with the summons and complaint. If the tenant avoids service, the landlord can post the summons and complaint on the front door of the apartment. He must also send the documents to the tenant by certified or registered mail with a return receipt. Once served, the tenant has an opportunity to defend by appearing in court.
Resources for Additional Information
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