Why Defective Service of Process is Not Merely a Technical Issue

By The Book

When a lawsuit is started, it may come as a surprise to the person or entity being sued. Or, if the defendant is used to being served on a near-daily basis, it may be a common occurrence. Importantly, whether a defendant is being sued for the first time or the 100th time, the manner in which service of process is done correctly remains a constant. While the filing of a lawsuit tolls – or stops – the statute of limitations from running, the lawsuit itself cannot move forward until proper service of process has been made on the defendant(s).

Importance of Proper Service:

Courts across the nation have held personal jurisdiction, which is obtained through service of process, is the bedrock of due process. Not surprisingly, service of process is mandatory in every lawsuit. Moreover, it is only after the defendant has been properly served that a court obtains jurisdiction over him or her to impose an enforceable judgment of liability (and resulting damages). Failure to obtain proper service upon the defendant requires that the lawsuit be dismissed due to the court’s lack of jurisdiction. Just as important, if the applicable statute of limitations has run and the plaintiff does not obtain proper service in a timely fashion this may be an uncorrectable error, thus barring him or her from recovering at all.

The most common and accepted method of process of service in Georgia, and other states across the nation, is personally if the defendant is an individual or upon an officer or managing agent if the defendant is a business entity. There are other acceptable alternative methods of service of process, however, including waiver (akin to acknowledgment by defendant). Once the defense of improper service is raised, the plaintiff bears the burden of effectuating proper service and can do so as a matter of right at any time prior to the expiration of the statute of limitations. If a defendant does not raise the defense of insufficient process of service in its first responsive pleading or filing, this defense is waived.

Determining Proper Service

Typically, a defendant who is served – and no waiver of service has happened – will immediately investigate the circumstances surrounding the actual service of process. The purpose of this investigation is to see if there is a way to claim improper service of process and defeat the lawsuit. Common questions asked by a defendant regarding service of process include:
● Whether both the summons and complaint were included with the process;
● Whether the summons correctly identified the proper court;
● If the defendant is a business entity – who was served, what is their title, and what are their duties;
● What was the date of entry of the service of process;
● At what location was process served; and
● Who was the individual who served process (including what they were wearing and what was communicated).
Despite the critical part service of process plays in a lawsuit, many plaintiffs take this for granted and they should not.