Service of process is the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents to the person to be served.
Proper service of process initially establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. Service of process must be distinguished from service of subsequent documents (such as pleadings and motion papers) between the parties to litigation.
In the past in many countries, people didn't have the right to know that there were legal proceedings against them. In some cases, they would only find out when magistrates showed up with the sheriff and seized their property, sometimes throwing them into debtor's prison until their debts were paid. The Fifth and Fourteenth Amendments to the United States Constitution prohibit the federal government and state governments from depriving any person of life, liberty or property without due process of law. Therefore the process server is "serving" the recipient with notice of their constitutional right to due process of the law.
In ancient times, the service of a summons was considered a royal act that had serious consequences. It was a summons to come to the King's Court and to respond to the demand of a loyal subject. In ancient Persia, failure to respond to the King's summons meant a sentence of death. Today the penalty for ignoring a summons may be entry of a default money judgment that can subsequently be enforced.
Service of process in cases filed in the United States district courts is governed by Rule 4 of the Federal Rules of Civil Procedure. In England and Wales, the rules governing service of documents are contained within Part 6 of the Civil Procedure Rules 1998.
Service on a defendant who resides in a country outside the jurisdiction of the Court must comply with special procedures prescribed under the Hague Service Convention, if the recipient's country is a signatory. Service on defendants in many South American countries and some other countries is effected through the Letter Rogatory process. Where a defendant's whereabouts are unknown, the Court may permit service by publication, usually in a newspaper.
Some jurisdictions require or permit process to be served by a court official, such as a sheriff, marshal, constable or bailiff. There may be licensing requirements for private process servers, as is the case in New York City. Other jurisdictions, such as Georgia, require a court order allowing a private person to serve process. Many private investigators perform process serving duties.
An example of such a license would be in Rhode Island, where an applicant must complete 90 days of training with a constable that has 'full powers'. Once the 90 days of training is complete, a test is given at the local courthouse from the laws included in the constable manual. Once an applicant passed the written exam one will be scheduled for an oral interview with the disciplinary board. If they find the applicant to be competent they will pass a recommendation to the chief judge which will then swear in one with 'limited power'. These constables can only serve within the county they are appointed. After one year, a limited power constable can apply for his/her full powers to arrest, evict, and be able to serve state wide.
One matter that the Practical Handbook on the Operation of the Hague Service Convention (Practical Handbook) addresses is to explain the difference between signification and notification in legal systems based on the Napoleonic Code. A copy of this Practical Handbook was most recently published in 2006 by the Hague Conference on Private International Law (HCCH). This fully revised and expanded edition of the Practical Handbook offers detailed explanations on the general operation of the Hague Service Convention as well as authoritative commentaries on the major issues raised by practice over the past forty years. The Practical Handbook analyses or otherwise refers to approximately 250 court decisions rendered in a great number of jurisdictions in relation of the Hague Service Convention. The Practical Handbook also contains a FAQ section and practical replies that offer a quick overview of the Hague Service Convention’s main provisions and basic features. This section is usefully complemented by four Explanatory Charts on various aspects of the Hague Service Convention’s operation. The paper edition of the Practical Handbook comes with a fully searchable and easy to use e-book (in PDF format).
In addition, substituted service may be effected through public notice followed by sending the documents by Certified Mail.
Acceptance of service means that the served party agrees to acknowledge receipt of the complaint or petition without the need to engage a process server. Failure to accept service voluntarily means that the party to be served will be liable for the cost of effecting formal service, even if the plaintiff's action is otherwise unsuccessful. In U.S. federal court, voluntary acceptance of service entitles the defendant to more time to file an answer.
The agent for acceptance of service or "Registered Agent" is a person or company authorized in advance to accept service on behalf of the served party. For example, most corporations are required by law to have an agent for acceptance of service in each jurisdiction where they are active. The identity of the agent for service can usually be ascertained from company filings with appropriate state agencies.
In California, "Registered Process Servers" are granted "...a limited exemption against trespassing." This allows servers to enter a private property for a reasonable period of time to attempt service of process. Similarly, in California, gated communities which are "...staffed by a security guard, or where access is controlled, must allow a Registered Process Server to enter for service of process upon presenting valid identification, and indicating to which address the process server is going." The problem is that this does not prevent the security guard from contacting the resident and alerting them that a process server is on his way to their residence.
According to various laws, service of process cannot be performed on Sundays in Florida, Maine, Massachusetts, Michigan, New York, Rhode Island, South Dakota, Tennessee (unless with a court order), Texas, Virginia, or West Virginia. It can also not be performed on election days in Michigan, or on holidays in Minnesota. Finally, in New York, process cannot be served on Saturday upon a person who keeps Saturday as holy time.