The Durand Law Firm, LLC

How do you know if you have been served properly?

Quite often in my practice I encounter parties who missed a court date or just learned of an impending court date for which they have little or no time to prepare.  This presents the litigant with a problem.  Should they go to court unprepared and risk an unfavorable outcome or should they stay home and protest later?

This is where the rules governing service of process come into play.  So let’s take a look at these rules.  The South Carolina Rules of Civil Procedure, Rule 4 sets forth requirements for proper service of legal documents.  A good place to start is a consideration of the person who “served” you.  Rule 4c states,

Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.

A common application of this rule is a situation where one spouse serves another with divorce papers.  This is not good service because in a divorce case each spouse is a party and the rule plainly states a party may not serve the other party.

Once you have determined you were served by an appropriate person a good follow up question to ask is, “How was I served?”

Rule 4(d)(1) states,

Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.

Proceeding through this rule one phrase at a time is useful.  First, the rule defines an “individual” capable of being served as any competent person over the age of 14.  So, if for some reason, your twelve year old brings you a summons and complaint, most likely you were improperly served.

Next, the rule states the summons and complaint may be delivered to the Defendant personally or it may be left at the defendant’s residence.  This means the service must be handed directly to the defendant or alternatively, it can be left at the defendant’s residence. This is not as simple as it may seem.  Often times a person going through a divorce, for example, will leave the marital residence and stay with a friend or relative.  A person may even change residences on several occasions in a short period of time while seeking more permanent lodging.  If this occurs then the person’s dwelling house or place of usual abode becomes difficult to ascertain.

If the defendant’s address is reasonably certain the summons and complaint may be left with a person who is likely to alert the defendant of the service.  A grey area exists here.  How do you know if you are serving a person of “suitable age and discretion?”  Well, a good rule of thumb here is what is called the “reasonable prudent person” standard.  Would a reasonable person leave important papers with a small child?  Probably not.  And neither should your process server.  But what if, instead of a small child, a sixteen year old answers the door?  If that is the case proper service may depend on whether the Court is satisfied the teenager is mature and trustworthy enough to be deemed of suitable age and discretion.

The next detail is crucial.  The person who receives the summons and complaint must “reside therein”.  This means the person receiving service must live in the dwelling house or usual place of abode.  An overnight guest or out of town visitor will not suffice.  Due to the temporary nature of a visitor, a visitor is not a person to be depended upon to convey important information such as legal documents.

Finally, getting back to our original question, if you are served with a summons and complaint it is NEVER a good idea to ignore it as invalid.  If you feel you were not properly served or you need more time to prepare your case or hire an attorney you should take steps to communicate this to the Court.  Conferring with an attorney is always a good idea.

Much confusion and uncertainty arises upon being served legal documents.  Unfortunately, a common reaction to receiving a Summons and Complaint is akin to the stages of grief.

First, one who receives the documents experiences some denial that they can be sued.  This person goes around telling their friends that the person suing them has no case and they will prevail outright.  Second, and often indistinguishable in time to the first, is anger.  The idea of being sued is daunting and can trigger instinctual reactions of fear and retribution.  This can have drastic consequences if left unchecked.  The third stage is bargaining   After a cooling off period the defendant may begin to regain composure and decide they can bargain their way out of the lawsuit.  They tend to follow this reasoning, “I can talk to the Plaintiff and we will work it out without getting the law involved.”  This is a terrible idea because it often results in inadvertent admissions to material facts of the case. After bargaining fails, a general malaise or depression may set in when the Defendant finally realizes the magnitude of his or her situation and what is at stake.  Then, the Defendant finally begins to accept their lot.  This is the point, usually only a day or two before a court appearance or deadline to file an answer, that a defendant begins seeking an attorney to represent them.

While these reactions are understandable, dwelling upon them can have adverse effects on a person’s chances of achieving a satisfactory result.  According to the South Carolina Rules of Civil Procedure, Rule 12(a) a person has 30 days to answer after they are served.  ***If you fail to Answer the consequences may be that all of the allegations against you are accepted by the Court as true.***

Don’t let this happen to you.  As soon as you receive service of a Summons and Complaint contact an attorney.  The longer you wait the more your case may be in jeopardy.