What Happens If Someone Refuses to Be Served?
Let’s suppose that you intend to commence legal proceedings against someone. Unfortunately, there’s a hitch: the respondent refuses to be served. Do you treat it as a lost cause? Is there legal recourse for you?
D&E legal process service can help you navigate the tedious and often challenging process of serving a defendant. If the other party refuses to be served, a professional who understands how to deal with ‘difficult’ defendants can be your best bet to set your lawsuit in motion. Let’s find out what happens upon refusal to be served.
Understanding Serving Process
If you happen to file a claim against someone in court, you’re required to submit a copy of the same to the respondent or respondents. Serving one of the defendants on your claim isn’t sufficient, even if they are related by marriage or business association.
A lawsuit is only complete when you serve all the respondents. The scenario is commonly referred to as a process serving in legal terminology. Each of the defendants should be made aware of your claim.
A service of process informs the respondents about the details of your claim, date, location, and time they are expected to provide a defense. Some of the papers you can serve a defendant include the following:
• Court Injunctions - judicial order prohibiting or compelling someone to perform a specific action
• Statutory orders
• Divorce petitions
• Claim forms
• Orders to appear in court
There has to be confirmation that you’ve served the papers and that the other parties have received them. But is it as smooth sailing as it sounds? No. Sometimes, a defendant refuses to be served.
Why You Need to Involve a Process Server
An independent process server is best poised to help you serve a respondent. Why? A process server knows the legal process in a given locality or state to avoid damaging your claim. You can eliminate potential grey areas by entrusting such an essential delivery to a process server.
In the same vein, a respondent may avoid being served by either hiding or limiting contact. Process servers know this too well and are trained to investigate and find hard-to-trace parties.
However, delivering court documents to a defendant can be a painstaking process when the rubber meets the road. Let’s look at how to deal with a defendant who refuses to be served.
Dealing with an Evasive Defendant
Most states allow anyone who has attained the age of majority (18 years or older) to serve legal papers, provided they are not part of the claim. However, specific rules govern how legal experts should do this. Civil Procedure Rules - the rules outlining how service of process should occur- vary by state.
Normally, mailing claim documents is not sufficient grounds for claiming you’ve served a defendant. Why? There is no way to prove they’ve received the paperwork or documentation. Some defendants may waive in-hand service, which is allowable by law. Simply put, a respondent can opt not to receive a hand-delivered court summon or a copy of a petition.
Sometimes, a respondent can be untraceable, meaning that attempts to reach them at their alternative address bear no fruit. If you or a process server has made reasonable attempts to serve the paperwork to a defendant in vain, you have your work cut out as the applicant.
Fortunately, federal and state laws often provide a workaround in substitute services permissible by the courts. You can bring a motion to the court outlining your failure to reach a defendant or their refusal to be served and seek alternative means to serve them. Here’s a look at some of the substitute services you can consider:
Substitute Services
Here are some of the alternative services:
1. Drop Service
If a defendant refuses to be served, the law still allows you to serve them. As the terms suggest, a Drop Service simply involves placing the summons or copies of the court documents on the ground before the defendant. In so doing, you’ve served them in the eyes of the law.
It might seem a tad unorthodox and even rude to do so, but sometimes, process servers have to do what is permissible by law when push comes to shove. The law deems a defendant served even if they attempt to return the service documents. However, some conditions must be met for a drop service to work. Here’s a list of dos to have in mind:
• The substitute service should be legally valid
• The process server should be able to describe the served party
• Documentation should be in plain sight before the recipient
• The process server should indicate in their notes where they left the documents
• The recipient should know they’re being served
Unfortunately, some states- Alabama, Illinois, and Tennessee- prohibit an applicant from serving a respondent if they’ve refused. A drop service is allowed in Colorado if a defendant refuses a personal service- usually by a process server, law officer, or adult not listed in the lawsuit.
2. Certified Mail
Registered mail is a popular and easy medium for serving clients who refuse to be served. The simple act of mailing service papers to a defendant qualifies a service of process in most U.S. states. Generally, a small claims court clerk mails the documents on your behalf at a fee.
Ensure to request a return receipt, which serves as evidence of the delivery- date and the party to whom the mail was delivered. If the other party fails to accent your mail, leading you to hire a process server instead, bring the issue up in court in your subsequent presentation. Such costs are recoverable from the judgment if you win.
You also don’t have to hand a claim or court summon to a person if they refuse to be served. Instead, you can leave a copy tucked under the defendant’s door, after which you can mail a copy to their last known or registered address.
Substitute service may also be sufficient by leaving a copy at a respondent’s home in the custody of someone in the household (usually a competent family member who has attained the age of majority). A second copy should also be mailed by first-class mail to the respondent.
You can also leave the documents at a defendant’s place of business or workplace in the custody of a responsible adult. Let the person in charge know what the papers entail to ensure they get to the intended party.
Ensure that the person mailing the copy isn’t part of the lawsuit. If all the procedures are followed to the letter, consider the defendant served ten (10) days post-mailing.
Notify The Court
The court needs to be in the know that you’ve filed a claim against a defendant and duly served them. Regardless of the approach you take, filing and signing a proof of service form in court after serving a respondent notifies the court of your actions.
All in all, refusal to be served doesn’t imply that a lawsuit is null and void. It’s usually a delay tactic a defendant may use to try and stall legal proceedings. A professional process server can help you get over such a bump so you can proceed with your suit.
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