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Some Basics of Service of Process

meagan-mccarthy

In the United States, we have a constitutionally guaranteed right to due process. Although complex, two of the fundamental due process rights are notice and the opportunity to be heard. That’s why being served with lawsuits is so vital; a court cannot adjudicate your rights without you knowing that a court action exists, which would thus deprive you of the right to assert defenses to the claims being levied against you.

Service of Process – What is It?

The way that the court and the Plaintiff let you (the Defendant) know that a lawsuit has been filed, is through the service of process of a lawsuit.

All service really is, is a guarantee that you get personally delivered a copy of the lawsuit and other important documents that you need to assert defenses to the lawsuit. By personally delivered it means that someone actually hands you a copy of the lawsuit.

There are times when someone other than the person being sued, can be given the documents. For example, process servers can leave it at your “usual place of abode,” by leaving the documents with anybody who lives there who is over the age of 15.

Evasion and Missing Defendants

But what if you evade the process server? Or on the other side, what if you’re trying to serve someone who cannot be served? Maybe he or she cannot be located, or the person is actively hiding, to avoid being served?

Florida, like many states, has what’s known as constructive service. Although limited in its use, constructive service is a way of serving people and businesses with lawsuits, when they cannot otherwise be found or located.

The process server must show that it made a diligent search to find, and personally serve, the Defendant, and that it could not. Or, the only address that can be found, is a non-resident address where nobody is located.

For those in gated communities, the law says that gated guards must allow access to property for process servers and that it must do so, without announcing the presence of the process server in advance.

In these cases, a copy of the service of process can be left with someone located at the address, even if not the Defendant. Alternatively, in situations where a Defendant just can’t be located (not just when the Defendant is evading service) service can be effectuated by publication in a medium that serves the county where the court or lawsuits are filed. It must be published once a week, for four weeks.

The process server also can leave the papers at the Defendant’s employer, so long as the process server gives advance notice to the employer.

Limited Use

One drawback to constructive service, is that the Plaintiff cannot get money damages against a Defendant served constructively. It can only be used for things like injunctions or actions related to real property or other lawsuits that don’t seek a money judgment.

Start your business lawsuit off the right way, and avoid problems later on. Call the West Palm Beach business litigation attorneys at Pike & Lustig today.

Sources:

flcourts.gov/content/download/862652/file/Everything%20Else%20-%20Constructive%20service%20benchbook.pdf

us.vlex.com/source/14779/chapter/chapter-49-constructive-service-of-process-400275377

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