How to Serve Someone Who Is Avoiding Service - Tips & Tricks
You have your lawsuit filed with the court and all that is needed to get your case started is to serve the other party with process. It might seem as if serving the other party is easy and would take little time at all. In some cases, serving process on the other party is easy: the person can easily be found and accepts service of process without question.
However, this is not true for every case.
In your case, the other party whom you must serve might be difficult to find. Or, worse, the other party might actively try to avoid you or your process server. When this happens, it can feel as if your case is stuck and your attempts and getting the legal relief you want are frustrated.
If you find yourself in this situation, you or your process server might need to become creative in serving the other party. A thorough knowledge of the laws that govern service of process in your state will enable you or your process server to accomplish service and get your case moving.
Avoiding Service of Process is Difficult, But Not Impossible
Unless the person who you are trying to sue accompanies you to the courthouse, it is difficult for a person to know precisely when someone is coming to serve them. Their first confirmation that someone is trying to sue them is likely going to be the note left by a sheriff’s deputy or a comment from a neighbor saying that someone is looking for them.
Once a person knows that someone is trying to serve them, it still is difficult to avoid service without fleeing the area. A process server can serve someone at their home or any public place. While knowing what the process server looks like might make it easier to spot them in public and run away, this advantage is slight.
In short, unless someone abandons their home and runs away to a new city, it is difficult – but not impossible – to avoid service of process.
Why Some Choose to Avoid Service
Some people are able to do so avoid service for a time, and their reason for doing so is simple: they hope to delay or derail a pending suit against them. They hope that if they can avoid the process server long enough, their legal matter will simply go away on its own.
While such efforts might temporarily delay the progress of a lawsuit, purposeful evasion of service of process does not make a lawsuit go away. Courts will invariably come to a point where they find efforts at serving a party are sufficient if the court is presented with evidence of repeated but failed efforts to serve the party.
Ways to Serve an Elusive Party
One of the chief ways that you can defeat efforts by the other party in your suit to stall or delay the progress of your case is by taking advantage of the various methods of service available. While personal service is the preferred method by which people should be informed about lawsuits filed against them, it is by no means the only way.
When the other party in your case is avoiding personal service, an experienced process server may be able to serve the party through:
Residential service involves leaving the notice of suit at the regular home of the other party with an adult who is over the age of 18. This method of service can pass legal muster because courts believe that a person will generally return to their home regularly and an adult living at that home can be trusted to deliver important paperwork like notice of a lawsuit.
Where residential service is permitted, it must be accomplished by delivering the notice of lawsuit at the other party’s primary residence. This requires a process server to ascertain that the address is the place that the other party identifies as their home address and intends to return to, as evidence by:
Presence of other family members living at the residence
Bills and other documents being delivered to the address
Furniture and furnishings in the residence
Personal property belonging to the party in the residence
Similarly, leaving the notice of lawsuit with just anyone found at the residence will not be enough to satisfy the demands of residential service. The process server will need to verify that the person is over the age of 18 years, that they reside in the residence with the party, and they expect to see the party again in the immediate future.
Service by Certified Mail
If residential service is not an option, the court or your state’s laws may grant you the ability to serve the other party via certified mail. Serving a party by certified mail is not usually an option available at the outset of your case, unless you are bringing a suit against a property and not a person. Otherwise, you must usually attempt service through other means and be unsuccessful before the court will allow you to try service by certified mail.
Successful service by certified mail involves sending the party notice of your lawsuit to their last known address via certified mail, return receipt requested. In order to receive your certified mailing, the other party will typically receive a notice from their mail carrier that they have a certified letter for which they must sign.
They retrieve your certified mailing by going to the post office, presenting identification, and signing a green postcard indicating that they are picking up the letter. The green card that the party signs will be mailed back to you, and this becomes your proof that the other party received notice of your lawsuit.
Problems can arise with certified mail service if it is not done correctly. First, other attempts at service must usually be made before a court will consider service by certified mail. Next, it is critical that the mailing be made with return receipt requested. Simply getting a tracking number on your mailing will not be enough.
Lastly, it is important that you or your process server take steps to ascertain that the address to which you are mailing the letter is the party’s last known address. If service by certified mail is not successful, the court will permit other forms of service but only if you attempted to deliver the certified mailing to the place the party was most likely to be.
Service by Publication
As a last resort, a court may permit you to give notice to an elusive party by publishing notice of your lawsuit in the local paper of record where the party lives. Before you can serve a party by publication, you must usually have exhausted all other methods at serving the party. The court will then grant permission for you to proceed with publishing notice in the local paper.
Giving notice by publication is more than simply taking out ad space in your local paper. The ad must contain information about the case and the time within which the party has to respond. It must also run for several weeks, so as to give the other party a reasonable opportunity to see the notice. Finally, the ad must be placed in the local paper of record; that is, the paper typically used to public legal notices in that area.
Serving a party by publishing notice is completed when the notice has run the requisite number of times in the paper and an affidavit by the paper’s publisher is filed attesting to this. It does not matter if the other party actually saw the notice or not. When done property, notice by publication can keep your lawsuit moving forward and preventing the other party from avoiding justice by simply avoiding personal service.
Non-Conventional Ways of Serving Parties
Remember that the purpose of serving process upon the other party is to provide them with notice of your lawsuit and an opportunity to respond to it. With this overarching purpose in mind, some courts have permitted service to be accomplished in unorthodox ways. In at least one case, a court permitted a party to serve the other party via Facebook after finding that the social media platform was the method most likely to give the other party notice of the suit.
How Having an Experienced Process Server Helps You
Why you try to serve the other party yourself or rely on untrained sheriff’s deputies who might only attempt personal service or residential service, a party who wants to obstruct your case can delay its progress by evading service. However, employing a process server who is familiar with your state’s laws and the full gamut of options available to serve a party, your process server can keep your case moving forward.
Many of these forms of service other than personal service are technical and require strict compliance with various requirements. A process server who has experience will know these requirements and be able to help ensure your case suffers no needless delays.