Understanding “Service of Process” During Lawsuit

Understanding “Service of Process” During Lawsuit


 

        When a person or business has been damaged by the negligence or bad dealing (breach of contract, fraud, etc.) of another party, and attempts to settle between parties are unsuccessful, the wronged party will usually begin litigation.  The start point of litigation is the drafting of a Complaint to file with a court.  I write “a court”, because parties usually have choices to make with determining the court to use. First, it could be something involving parties of different states or a Federal law issue which might give the option of Federal court, but we will assume South Carolina state court.  If the wrongful act/incident happens in one place, but the Defendant lives in another, both places offer jurisdiction to litigate.  If the damages are $7500 or less, the case can be brought in Magistrate Court as well as Circuit Court.  Regardless, the SC Rules of Civil Procedure (SCRCP) apply to all state courts.  The Complaint will have to allege the basis of the jurisdiction of the court of filing, and cause of action against the Defendant.  It must allege the elements of the cause the Defendant violated.  After filing the Summons and Complaint, the party filing has 120 days to “serve” the lawsuit on the other side or it is dismissed.

 

        By the SCRCP, the Complaint is served with a “Summons” that was also filed with the Court.  The Summons tells the Defendant he has 30 days to answer the Complaint or will be held to have defaulted to the cause of action.  That means the Defendant can lose the case if he does not answer within that time, which starts after he is served with the Summons and Complaint.  The default provision is why “Service of Process” is such a formal process in ensuring the Defendant actually receives the Summons and Complaint.

 

         By the SCRCP, Service means physically giving a copy of the Summons and Complaint to the Defendant by a competent person over the age of 18 and not a party or party attorney.  In practice, this is normally executed by a professional process server.  Of note, by the SCRCP service of process is conducted for civil suits and at the start of a Family Court action, but is not needed in for most Probate Court actions.  An exception to the rule of handing the papers to the Defendant is handing the papers to “an adult of suitable discretion at the Defendant’s residence”.  Usually, this is the Defendant’s Spouse or any adult children.  For a business, the service is conducted upon an officer of the corporation, or by certified mail through the registered agent for the corporation. After serving the Summons and Complaint, the process server executes an affidavit of service attesting to the service conducted, and that is filed with the Court. The date of service starts the 30 day period to answer and starts the clock for the suit.

 

        Another means of conducting service of process is by mailing a certified letter. “If” the Defendant personally signs for the certified letter, that signature is considered the acceptance of service and it can be filed as such.  If a Defendant’s attorney accepts service on the Defendant’s behalf, that is considered acceptance of service (note: Most attorneys will not accept most service for clients, and that acceptance is usually not in the client’s interest).  Additionally, a party can voluntarily accept service and sign an acceptance of service.  This is sometimes done when parties have reached an agreement before the suit begins and they are settling.

 

        If a party avoids service by avoiding the process server and refusing to sign a certified letter, the party bringing suit can request the court allow for “service by publication”.  This means that it is published in the newspaper of record for a period of time and the person is considered served.  It is not a defense for the Defendant to claim they didn’t actually read the paper, as the rules are specific about what must happen for service to be deemed complete.

 

        It’s important to know about proper service of process, and mistakes will mean the lawsuit can be dismissed for improper service.

 

Last modified on Thursday, 13 August 2020 20:46

Bill Connor Orangeburg Attorney Bill Connor received his Bachelor of Arts from The Citadel in 1990, and after serving for over a decade as an Infantry Officer in the U.S. Army, including three deployments to the Middle East, he received his Juris Doctorate from The University of South Carolina in 2005. In 2012, Bill was honored to receive an AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the top peer rating for American lawyers. Receiving this rating at such an early point in his career is unheard of among lawyers.

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