What is a Return of Service?
The federal definition and purpose of a return of service is very similar, if not exactly the same, as in the state court and due process sections. The key point that comes from the federal rule is that a court may only exercise jurisdiction over an individual if process is properly served.
The Federal Rules of Civil Procedure (especially Rule 4) regarding the return of service explain that the party serving the summons and complaint must promptly file a return to prove they served the defendant with the appropriate papers. Essentially, the party in charge of serving the summons and complaint to a defendant must file an affidavit stating that they properly served those documents . Proper service involves delivering the copies themselves or sending them via mail, or personally service to someone at their home. More information on this is found in the Federal Rules of Civil Procedure.
When service has been completed, the server must complete the appropriate form and file it within the time limits set in the Federal Rules of Civil Procedure. According to the Federal Rules of Civil Procedure, the returned proof of service on the summons and complaint must be filed with the court. The filed proof of service box may be checked to indicate the time when the defendant was served, which will be established as the date for effective service.
How does a Return of Service function in a case?
When a lawsuit is started, the Plaintiff is usually required to serve the Defendant with legal process and proof that the Defendant has been served. This is done by a being served with a "summons" and "complaint" or "petition" and then filing a "return of service" with the court. The complaint states what is being sued for. The "return of service" states how it was served and by whom.
Often, a defendant will receive a "subpoena" instead of a summons and complaint or petition. If there is any question about whether a subpoena is being served in the correct way, let an attorney know and the matter can be sorted out.
To serve someone, the papers are delivered to the person. Even if there is some misunderstanding about whether a summons and complaint, or a subpoena have been served correctly, the matter can usually be cleared up expeditiously. Usually the "return of service" is filed with the court to confirm that the person has been served.
In my experience, a summons and complaint, or "petition" and "return of service" are often filed, with a clerks certificate, as indicated by the court clerk stamp on the upper right of the motion. In other words, service of a complaint is sometimes confirmed by a certificate of service or some other document, in addition to the return of service. (The "certificate of service" could be inadvertently overlooked in your pleadings.)
After service, from the time you get served a summons and complaint until the time for you file an answer or other pleading, can be a short amount of time. But, there is an opportunity to ask the court to extend the time to respond. A claim that a party has been served incorrectly or improperly, such as when a party is served at home instead of his/her place of business or vice versa, is "rarely successful." When correctly identified, improper service is proper grounds for an extension of the time to respond or other action.
Different kinds of service in a case and proof
The last post discussed the requirements for "proof of service" in the context of "return of service." There are different "methods" of service (personal, substituted, and service by publication), and each method requires different proof to establish the validity of the return of service.
Service of a summons and complaint on a defendant can be valid where a process server personally (a) serves the summons and complaint on a defendant, (b) gives a copy of the summons and complaint to a responsible person at the defendant’s residence and then mails a copy of the summons and complaint to the defendant, or (c) serves the summons and complaint in another manner.
On the other hand, service of a summons and complaint on a defendant by publication leaves a substantial question about whether it complies with due process when no prior contact has been made with the defendant, because in such circumstances a defendant has not received "fair warning" of the pending action. Accordingly, there is a requirement that the plaintiff or plaintiff’s counsel’s declaration in support of an order for publication specifies that the whereabouts of a defendant are unknown and cannot, with reasonable diligence, be ascertained. Code Civ. Proc., §§ 415.50(a), 415.60(a). The declaration may also include information about those efforts.
It is true that the case law has confirmed that publication can be "reasonable" and acceptable under the due process clause, notwithstanding the fact that a defendant has never had any contact with the plaintiff or plaintiff’s counsel. For instance, in Mullane v. Central Hanover Bank & Trust Co., (1950) 339 U.S. 306, the United States Supreme Court has suggested that there is no requirement that a plaintiff first attempt to locate all possible defendants before serving (and thereby notifying) those for whom she had the most contact. Id. at 316-317. Thus, as long as the plaintiff or plaintiff’s counsel could not find the defendant’s whereabouts with "reasonable diligence," an order of publication can be appropriate even though the plaintiff was unable to locate the defendant in connection with the purpose of the suit, i.e., the defendant "did not even know of an obligation [to the plaintiff], much less a notice-taker concern itself about discharging that obligation." Id. at 317; see also Cal State Lottery v. Super. Ct. (Nahigian), (1993) 14 Cal.App.4th 562, 566-568. And the declaration of due diligence is sufficient where it "sets forth facts showing a thorough investigation and avowal of continuing investigation until defendant is found or until it is shown that defendant cannot be found." Markow v.先生, (2012) 203 Cal.App.4th 1041, 1046; see also Cal. State Lottery v. Super. Ct. (Calderon), (1995) 9 Cal.4th 784, 792.
Problems with improper service
It is easy to think the substance of a case is all that matters in a court proceeding. Unfortunately, court proceedings follow strict procedures, and a failure to follow those procedures can lead to significant legal consequences. For example, if a case is dismissed due to procedural issues, it is often left without recourse in a new lawsuit because the statute of limitations has expired. The returns of service are a crucial part of some of the most important procedural issues.
Service of process must take place at the outset of any lawsuit. The requirements for service can be found in the State Bar of Georgia Voluntary Guide for Service of Process. The return of service is a sworn statement executed by the process server attesting that the subject has been served in accordance with Georgia law. The return must be filed with the court proceeding in which the original lawsuit was filed. The return must include the current address, if known, where the defendant may be served. The return should also state the title of the case, the name of the party being served, and the time and place of service. A move from the state does not permit circumventing compliance with the statute. The return must also include a signature and address of the process server.
If a return of service is not filed, or the process server fails to comply with statutory requirements, the defendant may have certain defenses and may have been improperly served without knowledge of the suit, which could result in the dismissal of the original lawsuit as described above. Because the due process requirement for proper jurisdiction is satisfied by proper service of process, any judgment may be stricken in a subsequent action. K-Mart Corporation v. Evans, 194 Ga. App. 617 (1989). While the defendant is entitled to a dismissal of the suit, the bar to recovery may completely deny compensation to the plaintiff if the statute of limitations has run on re-filing the suit.
Also, if process is not properly served in a case, there is a good chance that discovery requests were not served at the same time. Witnesses may not have received subpoenas or document requests. This can severely impact the ability to prepare a case for trial.
Returned service changes the status of the lawsuit and starts the court’s clock running for a response. A filed return of service is prima facie evidence of the facts stated in it. Smith v. Stubbs , 262 Ga. 761 (1993). If the return of service is inaccurate, the defendant can deny service without meeting a higher burden. Should a return of service be inaccurate, amended returns can be submitted. A process server can amend a return of service to conform to the requirements of Georgia law, but an amended return is not effective to show compliance with statutory requirements where the defendant neither consents to substitution nor had knowledge of defective service. Pritchard v. Latimer, 298 Ga. App. 835, 837 (2009). A defendant could not be said to have had such knowledge in Winter v. Sikes, 251 Ga. 354 (1983), where service of the summons and complaint were found to have been deficient, and the defendant had not filed any responsive pleadings. This is an important argument when the defendant has not been served for a year (the statute of limitations), but the plaintiff never dismissed suit. When service is invalid but the defendant later appears, precedence indicates the defendant is waiving the defense. Womack v. Converse, 239 Ga. App. 586 (1999). However, if the defendant objects to the validity of the service then any subsequent appearance would not be a waiver. Smith v. Stubbs, 262 Ga. 761, 766 (1993). The fact that a defendant has acquiesced to defective process does not deprive the defendant of the right to set aside a judgment. Id.
Default judgments can often be set aside for improper service. Where the judgment is rendered based on a false return, it is clearly subject to equitable attack. Womack (citing Scarborough v. Scarborough, 245 Ga. 285 (1980)). When jurisdiction over the person is acquired solely by service of process which has not been properly made, any subsequent judgment it voided and may be set aside. Bohenek v. Wells, 222 Ga. App. 366 (1996) (citing Bailey v. George, 217 Ga. App. 257 (1995)).
If a valid return of service is filed, the court will grant an order requiring the defendant to answer within 15 days. If the defendant fails to meet this deadline after being granted reasonable time to respond, the plaintiff may submit a request for a default judgment against the defendant. Doing so will prompt the clerk to enter judgment against the defendant.
Importance of Process Servers
Understanding the Return of Service
The process server plays an important role in ensuring the return of service is completed correctly and as required under the Rules. The vast majority of process servers are followed a well-established procedure when they are instructed by lawyers and are doing the best they can to meet requirements of the Rules. The following are some of the requirements imposed natural persons and corporations under the relevant court rules:
• Rule 5C of the Supreme Court (General Civil Procedure Rules) provides that every person who serves an originating process must assist the party under whose authority the document is served by providing details of how the document was served. This includes the name and address of the person served, how the document was served and when it was served.
Failure to comply with these requirements means that the party who procured the serving of the process will remain effectively unserved whilst the particulars of the service are corrected.
• A corporation cannot personally serve a document in the Supreme Court or County Court. Rather, that corporation can appoint a person to be its "suitable officer" to effect service of the process on behalf of the corporation. The person appointed as the "suitable officer" must be an officer of that corporation and may also be a legal practitioner. If there are several corporations involved then a suitable officer must be appointed for each corporation.
• The "suitable officer" must complete an Affidavit to prove that service of an originating process has been properly and successfully effected. The Affidavit of service must be sworn by the "suitable officer" who has effected service on behalf of the corporation and must set out all of the information necessary to satisfy the criteria set out in Rule 7B.23 of the Supreme Court (General Civil Procedure Rules) (the Rule).
• The process server cannot actually serve the relevant person with the document on behalf of a corporation until the "suitable officer" delivers the process to the person for executive. Similarly, where a minor, an incapable person, or a person under a legal incapacity is to be served, that person cannot be served until the process server has been instructed to effect service by the appropriate authority.
Contesting a Return of Service
A return of service can be challenged when it is determined that it is incomplete or incorrect. There are limited circumstances when a Return of Service can be challenged by a motion to quash.
A motion to quash a return of service may be brought when the defendant makes timely a verified motion asserting the following grounds: A motion to quash must be made within the following times, in the following circumstances: If a party serves the complaint in the manner set forth in Code of Civil Procedure Section 415.40 or Government Code Section 6067 , the return of service must include a copy of the process and a copy of the affidavit from the person who made such service. A motion to quash the service of the summons and complaint under Government Code Section 6067 is available only if the person who gave the affidavit was not an officer, clerk, or other person specifically authorized to serve process. If the affidavit was given by such a person, a motion to quash the service will not be granted even if the affidavit is incorrect or untrue in some respect. The notice of motion to quash must be made on defendant’s behalf and must be filed and served before or at the time defendant makes his initial appearance by motion, demurrer, special appearance or otherwise in the action. (See Code of Civil Procedure Section 418.10; Wiley v. Jennings (1978) 85 Cal.App.3d 95, 106.)
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