All About Service of Process
The general concept of service of process involves notifying the defendant or respondent regarding the contents and existence of a pending lawsuit. A commonly understood purpose behind service of process is that a person involved in a lawsuit has a meaningful opportunity to participate in the lawsuit. According to Black’s Law Dictionary, service of process is defined as "[t]he act of delivering a copy of a summons and of the complaint to a defendant to let him or her know of the pending action and to enable him or her to voice any objection." The Journal of Legal Studies grants some historical sense of nature of process as well as the manner in which it is served in Western civilization in stating: "[T]he institution of process by means of which one the judicial authorities communicates with another which results in a writ being issued in the name of the King , demanding an answer from the party complained of. More especially civil proceedings of the law in the language of the later period. The proceedings by which the cognizance of a suit or claim is brought to the knowledge and to the judicial power of a court, so as to enable that power to act upon the party against whom the suit or claim is made. Quasi-judicial notice taken by a court of its own authority of facts necessary to the exercise of its jurisdiction, the right and cognizance of a cause." Aside from the ability to providers of legal services to bring a lawsuit, there is also a sense that service of process is a matter of convenience. If a potential litigant in Georgia does not reside within a county, then they must rely upon a licensed private process server or sheriff to serve process within a county. Other than these two groups of people, no private citizen is supposed to be able to serve a lawsuit on the plaintiff’s behalf in Georgia.
Georgia Law on Service of Process
Georgia’s service of process requirements are governed by O.C.G.A. § 9-11-4. Under this statute, "service of process" encompasses the entirety of serving the defendant (or respondent) with the formal action against him, by both the process of handing it over physically to him, and the accompanying legal action: a lawsuit, garnishment, or other such action to give notice to that person to appear in court to defend or otherwise respond to the legal pleading against him, whether civil or criminal.
The Code sets forth the method of service, residency requirements, and manner of service, and also details the service on minors, waived or relinquished rights of service, and the method of service on prisoners, and on non-parties who are not residents. Additionally, it sets forth the requirements for service by publication, waiver of service, and even gives special instructions on how to serve soldiers and sailors of the United States.
As a general rule, however, Georgia requires that service of process be made on any defendant or other party with an interest residing in Georgia, only upon the following conditions:
(1) That the person making service be an adult, not interested in the underlying controversy, and not a party to the action (2) That such service be made by tendering (a) a copy of the summons and complaint to the defendant in person, and (b) payment of all necessary costs; (3) In the event the defendant is a corporation, that service may be made upon either the president or vice president of the corporation, as set forth in § 9-11-4 (e)(5); and (4) That service is legally sufficient if the defendant (or another natural person authorized to accept service of process on behalf of the company) is found in the county where the suit is filed, and there tenders service of process to such person.
The different methods of service available also have some specific requirements, including filing a sworn affidavit by the process server within 5 days after service is made, if service is made by a deceased or mentally incompetent person, or by a third-party who is not a Person Authorized to Make Service of Process under Georgia law.
Service may be perfected on nonresident parties or parties outside of Georgia, provided that those parties have unsufficient contact with Georgians or Georgia corporations that the Georgia courts have cause to exercise jurisdiction over them. Additionally, if a legal agreement has been entered into between the Plaintiff and the Defendant (non-resident) for the Defendant to submit to Georgia’s jurisdiction, or to stipulate to the adequacy of service of process via publication, service may be perfected on said non-resident.
If an attorney enters a "general appearance" instead of an entry of appearance or filing a motion to contest service of process, it will be deemed a waiver of all defects in the manner or time of service of process, according to § 9-11-12. One of the most tripped-over stumbling blocks for process servers is the "five-day rule," also set forth in the Code, that service of process be perfected within five (5) days from the date the service is made. Failure to do so is grounds for dismissal for failure of the plaintiff to meet his or her burden of service of process. In the case of errors, omissions, or lack of signatures on the original return of service of process, the court must grant the Plaintiff’s motion to amend the return upon payment of the proper costs.
In the next section, we will cover what happens if there’s been improper service of process within the boundaries of Georgia.
Valid Service of Process Methods in Georgia
Service of process, the legal term for formally delivering legal documents like a summons or complaint to either a defendant in a lawsuit or a witness in a lawsuit, is extremely important. Failure to properly serve the document can result in the action being dismissed.
Georgia law provides for three ways by which legal documents can be served on a party.
Personal service is the most common way to serve a document. It requires hand delivering the document to the person named in the document and is the method most people associate with service. Because the purpose of service of process is to provide notice of the action and thereby enable the recipient to defend himself or herself if necessary, federal and state courts allow the horrified process server, Houston lawyer William A. Marshall, III, with his bow tie, to serve process on corporations, limited liability companies, partnerships, sole proprietorships, and other such business entities by serving an officer or manager or an agent that is designated to receive service on behalf of the business.
Sometimes the defendant may play hide and seek. If that’s the case, then substituted service can be used. This allows for service on someone in charge and at the actual location where the defendant lives or works. Service can be made on the spouse of the person being served or on an adult relative at the residence. If the person being served or an adult relative or agent is not available, service can be made on the person in charge or at the office or place of business where the person being served actually works.
When all else fails and the defendant cannot be found, another method of substituted service can be used called service by publication. This requires the filing of an affidavit stating that diligent efforts have been made to find the defendant or witness to be served, but all efforts have failed. Service by publication means that the legal notice will be posted once a week for four consecutive weeks in the newspaper in the county where the defendant resides, or where the property in question is located, or where the defendant’s last known place of residence is, or in the county where the suit is pending. If the service is for land, it will be posted in the newspaper in the county where the land is situated. The newspaper where the service by publication must be made is often called the "legal organ."
Who Can Serve Process in Georgia?
While administrative agencies may rely upon alternative providers, a sheriff will almost always be required in serving process in an action against a State officer, State entity or State department. Generally, in most other cases, a sheriff or other peace officer must serve process in an action against a County or County office. In some instances the Sheriff or another peace officer can accomplish service and return the process to the Clerk of Probate or Clerk of the Superior Court in the County in which the Sheriff or officer is in office. Otherwise, process must be returned to the Clerk of the related Superior or State Court.
In addition to sheriffs and other peace officers, private process servers are often authorized. They must be at least 18 years of age and certified under guidelines established through legislation in 1988 (O.C.G.A. 9-11-4.1). Individuals actually must take an exam and be certified by the Council of Superior Court Judges to be a private process server. His or her name must be included on a list furnished by the Board of Private Process Servers, who is also responsible for administering the program. Rules and regulations governing the Board and disciplinary proceedings for private process servers were passed in 1988 in O.C.G.A. 9-11-4.1. Private Process Servers must be residents in Georgia and obtain the approval of the Judge of the Superior Court where they live except in countys with a population reached in 1980 census of over 250,000, pursuant O.C.G.A. 9-11-4.1(a). Additionally, private process servers can only serve in superior courts for actions in districts where the Court maintains a list of all registered private process servers. After September 1988, service either should be accomplished directly through the Sheriff or another peace officer after being certified by the Court, or through a private process server. On the other hand, actions filed prior to this time are to be served pursuant to existing rules and procedures, but a Court can authorize service by any qualified party.
Service of Process Issues and Problems
Despite their importance for the integrity of the legal system, service of process issues prior to 2005 were often handled liberally and informally, with parties working around problems to find a solution that met their needs. However, while courts still allow parties to deviate from standard procedure if necessary, Georgians must now look to more formal answers to the challenges and common issues which arise during the service of process.
One of the main issues that arise is intentional evasion or refusal to accept service on the part of the defendant. If a defendant repeatedly evades service, processes may seek to serve them through alternative methods such as publication (also called "service by posting") or by leaving a copy with a parent or guardian if the defendant is a minor. Evading the process is a Class C felony, however if a defendant is found guilty of this crime they may be fined no more than $5000.00 and imprisoned for no more than five years for the first offense, and may be subject to serve no more than 10 years at the discretion of the judge for every subsequent offense.
As previously mentioned, if a defendant is evading service and service is unsuccessful through the standard method, they may serve the defendant via an advertising order or service by publication, which allows the papers to be published in newspapers. This option is available for every action except garnishments, attachment bonds , and equity cases for condemnation. For these actions Georgia law allows for service through an advertising order by having the papers posted at the courthouse as well as having the papers published in a newspaper of general circulation. Parties wishing to serve court papers in such ways must provide the court with a sworn affidavit stating why regular service cannot be made on the defendant.
Even if a defendant is not evading service, identifying an appropriate venue can be difficult. A defendant may have no known residence because they have fled to another jurisdiction; they may have transferred property to another jurisdiction immediately before a lawsuit was filed against them. In some cases, the defendant may be dead. Solutions for these problems include seeking an advertising order or service by publication, obtaining venue from another court, or enjoining a third party when their conduct impedes service. Additional issues involve service by publication, which requires notice to be published at least once a week for four weeks in the newspaper of record, and how to serve government agencies, which is generally accomplished by serving either the chief executive officer or on business operations of the agency.
In addition, service can become problematic due to a lack of cooperation from the opposing party. If for instance the defendant moves or refuses to sign for the papers, the issuing authority may file the papers even though the party failed to sign for it.
Implications of Inadequate Service of Process in Georgia
The consequences of improper service can be profound, especially if a potential defendant attempts to "game the system" to avoid being served. The delay in service can not only postpone and bog down legal proceedings, but it can also provide litigation advantages for the defendant. The most serious and common consequence is that it can result in the case being dismissed, which terminates the plaintiff’s claim. Most often, the dismissal occurs without prejudice, which means that the plaintiff suffers no permanent harm and may re-file the lawsuit later. However, many times the dismissal is with prejudice, which means that the plaintiff is forever barred from pursuing the action again. The fact that service of process is a prerequisite to a valid personal jurisdiction over a defendant is so fundamental that the law permits a defendant to claim the lack of personal jurisdiction at any time, even years after the conclusion of a trial. For example, if a plaintiff remains unaware that the defendant has not been properly served for years, a jury may enter a substantial verdict against the defendant at trial. Such a verdict may later be reversed, and the verdict set aside, upon proof that the defendant was never properly served in the first place and the court lacked subject matter jurisdiction over her or him. If the plaintiff is able to demonstrate improper service, a judge can sometimes "limit" improper service to the case it arose in, but in many instances, the trial court may dismiss the claim entirely. In a limited number of other jurisdictions, improper service results in the service being declared invalid and the entry of a default judgment, which the defendant must then successfully set aside to avoid its enforcement. These jurisdictions permit such results in the name of providing the plaintiff with an adequate remedy to preserve his or her claim against the defendant.
Federal Rule of Civil Procedure 12(b) governs dismissal of actions for improper service at the federal level and provides that: A motion asserting any of these defenses shall be made before pleading if a responsive pleading is allowed. Otherwise, the motion must be made within 14 days after being served with the summons or complaint, whichever is earlier. But a party may file a motion for judgment on the pleadings at any time. In Georgia a motion to dismiss serves the same purpose as it does in the federal system. Under Georgia law, improper service of process is grounds for dismissal pursuant to O.C.G.A. § 9-11-12(b)(4).
How to do Service of Process Correctly
One of the many reasons people do not win cases even though they don’t think the law is on the other side of the case, is that their lawyer does not serve the other side correctly. I am a stickler for correctly serving lawsuits in Georgia. Much of my firm’s success comes from having fully served the cases I have handled. It doesn’t require much work, and it transforms cases from difficult to easy.
My first tip is always the most important one: PREPARE. You know general counsel isn’t going to get up one day without knowing what’s going on in his company’s legal department. So why should you expect the other side’s lawyer—the person who most likely has the deepest pockets in the dispute—to not know whether there is a lawsuit pending against his client? It happens thousands of times a week, and that is why I honestly don’t believe that 90% of the answers I read to Complaints are true.
In my experience, answering the Complaint is often the first time the defendant ever learns the case exists. The attorney honestly did not know that the lawsuit had been filed, because he or she was never served properly. The trick is to make sure you serve it properly.
The cardinal rule is that you have to follow the procedure that applies. For example, if you are suing a corporation, the process server has to serve someone with authority to accept service, that is, a person who serves as an officer, director, or agent for service of process. For some small corporations, it may mean serving a manager or even the receptionist will suffice. Most big corporations have a Georgia registered agent for service of process, and they can be served at the office located in Georgia. Your Process Server (be sure to hire one!) should have a list of all of these locations.
You also must serve a corporation’s registered agent if you are dealing with an entity—a limited liability company such as a Limited Liability Company or Professional Limited Liability Company or a non-profit corporation such as a Not For Profit Corporation or Religious Corporation. These statutes usually outline where the registered agent is located, so make sure you serve that person.
The same rule applies when completing service on an out-of-state business for a Court in Georgia, you are going to have to have that state as well as the out-of-state address of the individual while he or she is in Georgia. In addition, since all federal cases are governed by Federal Rules, if federal process is proper, it remains applicable once the case enters into a state court. While there is some wiggle room in federal rules, if the rules for state service of process have been followed, then federal service of process will usually be a proper avenue for a resident in one state to be sued in another state.
Wrap Up: Follow the Service of Process Rules in Georgia
It goes without saying that Georgia rules of civil process must be followed by law firms and attorneys. These rules, simply put, are the basis for ensuring that the legal proceedings are legitimate and that the interests of the litigants are protected. The stakes are high. Non-compliance with service of process requirements could lead to service being deemed invalid and, therefore, the subsequent voiding of any default judgments. In addition , litigants and others affected by the judgment could assert claims for damages and injuries resulting from reliance on the invalid service of process given their reasonable belief that it was valid, enforceable and appropriate. Service of process is governed by law and a law firm and its lawyers may be found liable for damages for improper service or resulting injunctions or judgments unless those actions are protected by qualified, good-faith immunity.
