How to Prove You Were Not Served Properly

Disclaimer: Please note that On-Call Legal Process Servers does not provide assistance or support for cases involving invalid proof of service. Please do not contact us regarding invalid proof of service inquiries.

Improper service of process is sufficient ground to invalidate a civil lawsuit instituted against you. However, for the court to rule in your favor, you must prove that you didn’t receive the court documents, it was sent the wrong way, or it didn’t contain accurate details of the case, such as the right court date.

Essentially, proper service must comply with the applicable court rules and regulations. Otherwise, it will be deemed invalid. To ensure proper process service, the issuing party must hire a reliable expert who understands the nitty-gritty of serving court papers in the defendant’s jurisdiction.

On-Call Legal Process Servers is your go-to process server for all services of process in California and beyond. Our experienced nationwide process servers are always available to help you deliver your court papers across the country within 24 hours. Contact us today to book a free consultation.

In this article, you’ll learn about the legal requirements for proper service, how improper service can affect your case, and common reasons for improper service. The article will also discuss what to do if you are not properly served in California, Texas, and other states in the country.

Understanding Legal Services

Service of process is an integral step in litigation aimed at notifying a defendant of a lawsuit filed against them. By serving the defendant properly, the court establishes jurisdiction over them, making it mandatory for the defendant to respond to the lawsuit at the scheduled court date.

Additionally, it helps them prepare their defense and participate effectively in civil proceedings. There are several methods of serving legal papers, depending on the case and the availability of the defendant. They include:

Personal Service

This involves physically delivering the document to the defendant by a process server. It’s the oldest, yet most effective and reliable method to serve papers as it involves direct contact with the individual, making it difficult to deny receipt. Personal service remains valid even if the defendant declines the served court papers or discards them.

However, the process server has to identify him or herself. In some jurisdictions, the papers may be dropped at the recipient’s front door or even at their feet if they refuse to be served after verifying the identity of the process server.

Service by Mail

This method is typically used when all efforts to personally serve documents to a recipient fail. It involves sending the legal papers to the defendant’s address through the post office.

However, for service by mail to be considered valid, you must provide proof of service to the court. As such, instead of using regular mail or even First-Class Mail, send the legal papers via Certified Mail with the return receipt requested. 

Substituted Service

This involves leaving the legal documents at the defendant’s residence or workplace with someone related to them. The person who received the document must be legally mature enough to understand legal papers; otherwise, the service is deemed invalid. Some jurisdictions permit the use of this option when serving the process personally is difficult or almost impossible.

Service By Publication

In most cases, service by publication is usually the last resort. It involves publishing the court papers in a local newspaper or any other court-approved publication in the defendant’s county or jurisdiction.

To do this, you must obtain a court order after proving to the court that you’ve made several attempts to serve the papers personally to the defendant. Otherwise, it would be considered a bad service and a breach of the defendant’s privacy.

Legal Requirements for Proper Service

The rules and requirements for service of process vary by jurisdiction. For instance, in federal cases, the Federal Rules of Civil Procedure (FRCP) govern civil legal proceedings and the service of process. Most states base their service of process rules on the FCRP, but with modifications in various areas, including:

Timeframe for Service

In most jurisdictions, the law provides a sufficient timeframe for the serving party to deliver court papers to the recipient. For example, in California, summons and complaints must be personally served to the defendants within 60 days after the lawsuit is commenced against them. In New York, you’re required to serve the documents within 120 days after filing with the court clerk.

Person Eligible to Serve

A designated person serving papers for a court hearing must be at least 18 years old and not a party to the lawsuit. They must also be lawful citizens or residents of the United States. Any violation of these requirements will render the served papers invalid.

This is why it’s advisable to hire a professional process server to avoid service errors that may delay your case and cost you additional dollars. A process server is professionally trained to serve court documents. They’re experienced in the laws governing process service and have expertise in ensuring quick and compliant delivery.

Also, most people hate being served and can do anything to evade service. In this case, the process server may utilize investigative resources, such as skip tracing, to locate the individual and serve them the document properly.

Proper Documentation of the Proof of Service (PoS)

For the service to be valid, the serving party must properly document the proof of service. It must contain the name of the person served, along with the date, time, place, and method of service. The proof of service must be duly filed in compliance with the jurisdictional rules and requirements. 

For example, in California, you must file a proof of service form before the court can proceed. In Texas, you must file the PoS at least ten days before the court enters a default judgment against the defendant. In most states, failure to file the PoS in a timely fashion will lead to the dismissal of the case.

How Improper Service Can Affect Your Case

A service is improper when the serving party fails to adhere to the rules and requirements governing the service of process in their jurisdiction. As mentioned earlier, improper service can lead to the dismissal of your case, as the court can only exercise jurisdiction over the defendant on the grounds of proper legal service.

Also, bad service can result in delays and financial losses. The respondent may file a motion contesting the validity of the service, delaying the hearing of your case. Moreover, if the court enters a default judgment against them, you may face financial sanctions and be ordered to reimburse their attorney fees.

Common Reasons for Improper Service

At times, improper service is caused by negligence or ignorance of the applicable court rules. These can be expressed in the following:

Mistaken Identity

The serving party may deliver the legal papers to the wrong individual due to similarity in their names or addresses. The most basic form of due diligence in this context that can prevent this issue is to request a valid means of identification from the recipient before giving them the papers.

Incorrect Address

The error of incorrect address is quite common in the mail service. When court papers are mailed to incorrect addresses, it renders the service invalid. If you cannot reach the recipient at their last known address, try to obtain a forwarding address from the postal office.

Professional process servers like On-Call Legal Process Servers have sheer experience in dealing with this kind of case. They use a variety of technologies to ascertain the usual place the defendant hangs out.

Failure to Follow Procedural Requirements

Failure to follow the procedural requirements, like serving the document outside the specified timeframe, makes the service improper. Serving the individual electronically without their consent and court approval may also result in improper service. Again, failure to file the affidavit of service within the designated timeframe may lead to outright dismissal of the case.

Service to Unauthorized Individuals

In the case of substituted service, leaving the document with the individual who is not related to the defendant, or not deemed mature enough by the law, renders the service improper. For example, in California, the defendant’s relative receiving the document must be at least 18 years of age.

Gathering Evidence of Improper Service

• The first step on how to prove improper service of court papers is to gather evidence that supports your claim. You can start with the following:

  • Personal Testimony: Provide a detailed account of your whereabouts and activities you’re engaged in at the time of the alleged service.

  • Witnesses: If there are individuals with you at your location during the improper service, their testimonies can serve as evidence.

  • Surveillance: You can provide surveillance footage showing you were not served on the alleged date or that the service was improper.

  • Mail Records: If there’s no mail delivered to you or if you haven’t signed the receipt, you can petition the post office to provide their records as evidence of improper service.

  • Electronic Records: Do you have emails, phone logs, videos, photos, or other documents showing you were somewhere other than the location of the alleged service? They could also serve as compelling evidence.

Taking Legal Action for Improper Service

If you experience improper service of process in Texas, California, or any other state in the US, you have every right to object to the service and even file a motion to quash it. Here are the proper steps to take:

Consult With Your Attorney

Before you take legal action against the other side, it’s advisable to consult with your attorney. Your lawyer will review the case and provide you with expert advice on how to proceed. Also, the attorney will represent you in court, protect your rights during court hearings, and help you navigate the entire process effectively.

File a Motion to Quash or Dismiss

If you have a strong basis and evidence to prove you were improperly served, you may file a motion to quash or dismiss the service. To do this, you first need to draft the motion. Here, you include a caption that identifies the court, the case name, and the case number.

Then, write a statement of fact, describing how the service was improper, followed by a legally logical argument explaining why the court should dismiss the case for improper service. Submit the motion alongside your evidence to support your claim.

Attend Hearings Related to the Case

After filing the motion, the court may fix a hearing date. Attend the hearing and present your case before the judge. Also, the hearing will give the other party the opportunity to present their side of the story.

What Happens if You Are Not Properly Served?

If the court rules that you were not properly served, it can potentially lead to several implications, including: 

• Case Dismissal: The court may dismiss the case, that is, terminate the lawsuit, following its lack of jurisdiction over you or the violation of your due process rights.

• Sanctions Against the Serving Party: The court may impose sanctions on the serving party. Sanctions may include monetary fines and ordering the party to reimburse you for the attorney fees.

• Re-establishing a Timeframe for Proper Service: Where the court did not dismiss the case, they may give the serving party another opportunity to serve the documents in compliance with the procedural requirements.

Preventive Measures to Avoid Improper Service

Here are adequate steps to take to avoid any form of bad service:

Update and Keep an Accurate Record of Your Address and Whereabouts

To ensure the court papers are delivered to you, keep accurate records of your address. Provide the correct address when registering with a government agency, bank, insurance company, religious organization, social group, or any other relevant entity. Also, update your address with these entities when you move to a new location.

Inform Close Contacts of Any Pending Legal Issues

Inform your family members, close friends, or neighbors of any pending legal issues that you may be involved in. With this awareness, they can assist you by receiving the documents on your behalf and promptly reminding you of the case.

Install Surveillance Measures

Surveillance footage serves as strong evidence in the law court as it records events without any manipulation. Put these cameras both in your home and business premises to monitor and record any service attempts.

Need to Consult a Professional Process Server?

Proper service is a vital part of the due legal process to ensure fair treatment and protect the legal rights of the defendant. If the process server served the papers in any manner that contravenes the court rules, the service will be considered invalid. That’s why you must work with a professional process server.

At On-Call Legal Process Servers, we help parties in court cases to serve various kinds of papers, including divorce papers, writs, subpoenas, summons, and complaints. Our team of professional process servers will go the extra mile to ensure that the court papers get into the right hands. Contact us now for a free consultation.

FAQ

I Was Not Properly Served in California, What Should I Do?

Improper service of process in California is enough grounds to move for the dismissal of the case. However, before you take any action, seek legal help from an experienced lawyer.

What Makes a Proof of Service Invalid?

A Proof of Service is invalid if it was filed late or contains errors. It can also be deemed invalid if the court papers were served to the wrong person.

What Is an Example of Improper Service?

An example of improper service of process in California, Texas, or anywhere in the US includes giving the court papers to the wrong person or an underage person in the case of a substituted service. Another example is using a service method not approved by the court.

Also, if the court where the papers originated has no personal jurisdiction over you, you may file a motion to quash the service.

How Do I Prove I Was Never Served?

One of the ways to prove you were not served is to provide an alibi showing your exact location at the time of the alleged service.

How to File a Motion for Improper Service?

Consult your lawyer to file the motion in a court with jurisdiction over the issue. It could be the same court where the service originated.