service of process

Service of process is the procedure by one party in a lawsuit or legal proceeding to give another party an appropriate notice of the initiation of legal action. The procedural due process clauses in the United States Constitution prohibit courts from exercising personal jurisdiction over a defendant unless the defendant has proper notice of the court's proceedings. To meet this rule, courts require plaintiffs to arrange for defendants to be served with a court summons and a copy of the plaintiffs' complaint. These papers are collectively called process.

In Mullane v. Central Hanover Bank & Trust Co., the Supreme Court ruled that notice of the lawsuit must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” The Court further explained that notice should allow parties reasonable time to appear before the court. A service method is reasonable if it is reasonably certain to inform the defendants of the lawsuit.

Typically, it is not enough to simply mail process to the defendant. The summons and complaint must be either given directly to defendants or left with a suitable person at their home or place of business. Service may usually be performed by any adult who is not a party to the lawsuit. Plaintiffs may hire professional process servers to serve defendants.

There are exceptions to these general rules.

• For example, the Federal Rules of Civil Procedure allow defendants to waive in-hand service of process. Defendants who do this, may get more time to compose their answer. Those who refuse must compensate the plaintiff for the costs of arranging for in-hand service. See Rule 4(d) of the Federal Rules of Civil Procedure.

Rules governing service of process vary by jurisdiction. For example, in New York, service of process is governed by NY CVP 303, 306, 308, 310, 311, 312, and 313.

Generally, service of process within New York State can be satisfied through personal delivery, deliver-and-mail service, service upon an agent, affix-and-mail service, or court-ordered service within 120 days of the filing. For service outside of the state, it can be satisfied in the same manner by any New York resident authorized to make service within New York, by any person authorized to make service by the laws of the local jurisdiction, or by “duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.” See State Civil Procedure Rules.

[Last updated in July of 2024 by the Wex Definitions Team]

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