What Happens When a Process Server Fails?

If a process server fails, the court is notified, and a motion is filed to serve the papers again. After that, extra steps are taken to locate the recipient, or a different process server is hired if it seems the current one is compromised.

At On-Call Legal, we are your one stop for all your attorney and messenger needs; we have been at this for over 15 years. If you need process service done right, we are your best bet. Reach out to speak with a member of our team today.

This blog covers process service failures and what happens when they occur. It also speaks on how to avoid such occurrences and what to do in such an eventuality.

What Happens When a Process Server Fails to Serve Papers?

The general implications of a failed service attempt include delay or dismissal of legal proceedings, violation of due process, default judgment, additional costs and legal complications, it can also weaken the case’s momentum, possibility of legal sanctions, and statute of limitations risk.

There are so many instances that can delay legal proceedings. Some of them include several failed attempts in process service, continuances, court congestion and backlogs, change of legal representation, judicial recusal, administrative errors, failure to meet filing deadlines, and unavailability of witnesses, among many others.

Delays in legal proceedings impact both the plaintiff and the defendant in negative ways, even though they may affect them differently depending on the case. Some of these ways include an increase in legal costs, psychological toll, delayed compensation, reputational damage, increased pressure to settle, infringement on the right to a fair trial, and potential for unjust outcomes.

Failure in the service of process is a situation where legal documents are not properly served as required by law. A few types of failures are as follows:

1. Failure to serve on time: This means that the defendant is properly notified but not on time, specifically within 30-120 days after filing.
2. Serving the wrong person: This means either giving someone court papers or delivering legal documents to a person who is not the intended defendant.
3. Incomplete or improper documentation (e.g., no proof of service): There may have been a proper service, but the affidavit given to the court is incomplete, not accurate, or missing.
4. Violating legal rules (e.g., trespassing, harassment): This is the use of aggressive or improper tactics to serve court papers during service of process.
5. Unintentional vs. willful misconduct: Unintentional misconduct is a failure to exercise reasonable care in serving a legal document, which hinders proper service. In contrast, willful misconduct is a deliberate act that violates the rules of process service, often with the intent to bring about legal consequences.

Consequences if a Process Server Fails to Deliver

There could be severe consequences for both the plaintiff and the defendant if a process server fails to deliver.

• For the Plaintiff:
  • Delay in legal proceedings: The court case proceeds smoothly only when the defendant has been properly notified by the process server; otherwise, it may delay legal proceedings.
  • Case dismissal (especially in strict deadlines like small claims or eviction cases): If a process server has made multiple failed attempts, the case may be dismissed.
  • Additional costs for re-service: Since a process server is usually paid for their service, if another is hired, they must also be compensated.
• For the Defendant:
  • Possible default judgment (if the court is unaware they weren’t properly served): The court may issue a default judgment if they are falsely informed of complete service.
  • Could be held in contempt: Even if a defendant is not served legal papers, failure to appear can still result in being held in contempt of court.

What Can You Do After a Failed Service of Process?

There are various steps to take after a failed service of process. One of the first things you should do is re-serving the papers. You can do it possibly with a different server while updating addresses, trying different times, use of skip tracing if the defendant is trying to evade service. After that, you can ask the court for an extension, especially if you show that you have given the defendant a fair chance or that the defendant is avoiding service.

You can also file a motion to quash service if you’re the defendant and received improper service. This is a formal request seeking court approval to declare a service of process void because of improper process serving. Lastly, you can use an alternate service, that is, publication, mail, or court-ordered substitute service. If a personal service is hindered, you can request several alternative service methods, which include substitute service, certified mail, publication in a local newspaper, or even email.

Can a Process Server Be Held Liable for Failure?

Accountability refers to the responsibility of professional process servers to carry out their obligation of successful service. And because it is an integral part of ensuring due process, accountability is critical for protecting the integrity of the entire legal process.

Therefore, the answer is yes, process servers can be held liable for failure in certain cases. Some of which are situations involving professional misconduct. Most process servers will tell you that this can lead to loss of license, civil lawsuits, and even jail time.

Also, negligence or fraud is a serious mishap. Professional process servers can be sued if they failed to attempt service, if they lied about doing it, or served the wrong person and did not follow up. Possible complaints to state licensing boards or private process server associations, which would lead to a formal review process before disciplinary actions follow.

Can a Process Server Be Sued for Failing to Serve Papers?

Yes, a process server can be sued for failing to serve papers. There are several legal grounds for suing a process server, including negligence, breach of contract, and professional misconduct.

To sue, you would need proof of improper or bad service, which could include video evidence, witness testimony, or contradictions in evidence. Additionally, you should have a copy of affidavits of service or serving documents, which could be compared with the actual events of the day. Also, a documentation showing the effect of the failure. This could be legal documents showing missed court dates, defamation in the local newspaper, or a default judgment. Potential settlements could include legal consequences such as disciplinary actions, revoking of licenses, or reimbursement of costs.

Are There Time Limits for a Process Server to Serve Papers?

Yes, there are time limits for a process server to serve legal papers, and they vary depending on Jurisdiction, Type of case, and Type of legal document being served. Time limits are very imperative to the legal system and timelines because they determine the progress, validity, and outcome of a case. It could delay the start of a legal process and increase the risk of dismissal of a court case.

It is important to initiate timely re-attempts because it keeps a case legally valid and on schedule. If personal service fails and there is no follow-up, it could lead to a dismissal, a loss of legal rights, and even an inability to refile.

How to Prevent Process Server Failures

There are quite a few ways to prevent process server failures, and we can go through them together. First, it is best to hire a reputable, licensed, and skilled process server: Check reviews and licenses, use people with weathered experience in process serving. You should also provide accurate addresses and contact information: Give the server the full name, addresses, work hours, vehicle description, phone numbers, and social media accounts if available. You can also track deadlines because it is easier to achieve successful service if all dates, times, and notes are tracked.

It would also be prudent to keep thorough documentation, as keeping detailed records of all attempts and photo or video evidence where it is permitted is advised. You must also follow local service rules exactly, and as such, it would be ideal to identify where the case is filed and check the local laws of civil procedure. Finally, always file proof of service promptly. It should include who was served, where and when, the method used, and the server’s declaration and signature. This not only helps to prevent failures but also to avoid more severe consequences against the servers.

Looking for a Professional Process Server?

Failure to serve properly can delay or destroy a legal case; in legal issues, service of process is the foundation for notifying a party of a lawsuit. It could put the entire legal process at risk if not carried out properly.

It is important to act quickly after a failed service because deadlines have strict time limits, and a follow-up requires court approval. It also shows a level of seriousness to the court, which would be favorable if you end up needing to request an extension.

Don’t gamble with your legal matters; partner with professionals who get it right the first time. On-Call Legal has nationwide process servers who are available to help get the job done. You can walk into any one of our offices for a consultation, as we have three different offices in Southern California. Contact us today, and a member of our team will be available to put you through on every step you need to take.

FAQs

If it is a personal delivery, multiple attempts, or one of several alternative methods, most parties involved tend to ask questions when traditional service methods fail. Below are some of our frequently asked questions.

What Should I Do If a Process Server Fails to Deliver Court Documents?

First thing is to confirm the failure through a written explanation or an attempt log. Then you assess the cause of the failure, take immediate action, and document all attempts before considering alternative service methods.

Is Improper Service a Valid Defense?

Yes, it is a valid legal defense. If the defendant is not properly served, they can claim that the court never had jurisdiction over them, and this is a must for any legal action.

What Happens if a Server Can’t Find You?

If a process server can’t find you, the judiciary has other ways to ensure you’re still served. You can’t escape a lawsuit and its legal consequences by simply avoiding service.

How Many Times Can a Processor Come to Your House?

There is no agreed or uniform limit on how many times one can come to your house, but it has to be a reasonable amount to meet the legal requirements.

Can a Process Server Serve You At Work?

Yes, a process server can serve you at work, as long as it doesn’t cause a disturbance.

Can a Process Server Trick You?

To an extent, yes, the courts allow a mild form of trickery when a defendant is avoiding service.