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If you're a plaintiff who needs to know how to serve someone court papers after filing a claim with the small claims clerk, or you're a defendant who isn't sure how to prove you were not served properly, here's the short answer: The plaintiff must have someone who is not a party to the case deliver a copy of the claim to each defendant sued. This process is known as "service of process." The reason the plaintiff must serve the other side is obvious: Defendants need to know about any claims against them and must be notified of the day, time, and place to show up to defend themselves. Keep reading to learn more about serving court papers.
Although you can complete and file a lawsuit without any assistance, you can't personally serve the court papers. You must ask or hire someone over 18 years of age who isn't involved in the suit to handle service of process.
All defendants on the plaintiff's claim or all plaintiffs on the defendant's claim must be served. It is not enough to serve one defendant or plaintiff and assume that that person will tell the others. This is true even if the parties are married, live together, or do business together.
There are several ways to serve papers on individual defendants. It all depends on your knowing where the defendant is. If you can't find the defendant personally and do not know where the person lives or works, you won't be able to complete service, and it probably makes little sense to file a lawsuit.
Personal service means that someone hands the defendant the relevant papers. You have various options regarding who performs this task. Of course, if you use someone who doesn't personally know the defendant, the server will need to be particularly careful to serve the right person. These are your options for who can serve the defendant.
A mailbox isn't personal enough. No matter who serves the papers, the claim and a summons must be handed to the defendant if personal service is used. You can't simply leave the paper at the defendant's job, home, or mailbox.
If the process server locates the right person, but the person refuses to take the paper, acts hostile, or attempts to run away, the process server should simply put the paper down and leave. Valid service has been accomplished. The process server should never try to use force to get a defendant to take any papers.
Unfortunately, sheriff's offices in some states are getting out of the process-serving business. This means that you may have to hire a private person or company. Some of these are truly fly-by-night–they've figured out that process serving is a quick way to make a buck. You may even see them cruising around the courthouse looking for business.
Do a little research first to ensure you're dealing with a business that backs up its promises. One indicator of trustworthiness is how long the process server has been in business–ask to see a business license or look in the phone book for process servers who list the date their business was founded. You can also ask the small claims court clerk for a list of registered process servers. If you know any lawyers, you can ask them for a recommendation.
In most states, you can serve papers by sending them to the defendant via certified mail with a return receipt requested. In some states, service by certified (or registered) mail is one of several ways you can serve papers. Other states require you to try service by certified mail first before any other method of service.
Usually, the court clerk does the mailing for you and charges a small fee that is recoverable if you win. The mail method is cheap and easy, but in most states, the defendant must sign for the letter for this type of service to be effective. (In a few states, service is accomplished even if a certified letter is rejected by the defendant.)
Most businesses and many individuals routinely sign to accept their mail. However, some people never do, knowing instinctively, or perhaps from past experience, that nothing good ever comes by certified mail.
If you try using the mail to serve your papers and fail, and you end up having to pay a process server, tell the judge about it as part of your presentation. Your costs will likely be added to the judgment.
A minority of states allow papers to be served by first-class mail. The states differ, however, on what you must do if the defendant doesn't answer your complaint within the time limit. Check with your court clerk to see if this method is available in your area.
It can be difficult to serve certain individuals. Some have developed their skill at avoiding process servers into a high art. In some states, avoiding service no longer works, as a procedure now allows "substituted service" if you make "reasonable efforts" to serve a defendant and fail.
This type of service is often called "nail and mail" because, in several states, if you can't serve the defendant personally, you don't have to leave the claim with a live person. Instead, you can simply tack one copy to the defendant's door and mail the second copy.
In a typical state, substituted service works like this:
Service is complete ten days after mailing. Be sure that all steps, including mailing the extra copy, are carried out by an adult who is not named in the lawsuit.
If you know nothing more than the individual defendant's post office box, you'll need to get a street address to serve the person. To do this, you must give the post office a written statement saying that you need the address solely to serve legal papers in a pending lawsuit.
This should work, but if it doesn't, refer the post office employee to the Post Office's Administrative Support Manual § 352.44e(2). There is no fee for the Post Office to provide this information. 39 CFR § 265.6(d)(4)(ii).
It is proper to serve someone who is on active duty in the armed forces. If the person shows up, fine. If not, however, you have a problem. Although you can usually get a default judgment against a properly served defendant who fails to show up, this is not true if the person you are suing is in the military (other than the reserves).
Default judgments cannot normally be taken against people on active duty in the armed forces because Congress has given our military personnel special protections. To get a default judgment, you will probably have to file a statement under penalty of perjury that the defendant is not in the military. This declaration is available from the clerk. Clerks almost always accept a Declaration of Nonmilitary Service signed by the plaintiff as long as the plaintiff reasonably believes that the defendant is not on active duty. This constitutes a lenient interpretation of the law by clerks, but no one seems to be complaining.
You don't need to do anything else if you have asked the court clerk to serve your papers by certified mail. The court clerk sends out the certified mail for you, and the signed post office receipt comes back directly to the clerk if service is accomplished. It's as simple as that.
However, a court can't know whether papers have been successfully filed by personal service, substituted service, or first-class mail unless you tell them. Notification is accomplished by filing a form known as a Proof of Service with the court clerk after the service has been made.
The Proof of Service form must be signed by the person actually making the service. Proof of Service is used by the plaintiff and the defendant if the defendant files a defendant's claim. It must be returned to the clerk's office.