The federal courts have developed an alternative method for service of the complaint and summons which has recently begun to catch on and be adopted in some states. Under the federal rules of procedure, the plaintiff may send the defendant a complaint and summons by mail along with a request that the defendant waive the requirement of service by traditional means. Included with the summons and complaint is a notification that the defendant must return the request for waiver of service with his or her agreement to waive service within 30 days (or 60 days if outside of the U.S.).
Otherwise, the defendant must pay all expenses incurred by the plaintiff in serving by traditional methods. In other words, if the defendant does not waive the requirement of traditional service, then the defendant has not been effectively served and has not waived that requirement, so the plaintiff has to carry it out by traditional means.
If the defendant makes the plaintiff serve by traditional, more expensive means by not agreeing to waive that requirement, the personal injury judge will make the defendant pay for that service. If the defendant agrees to the waiver and returns the request indicating his or her waiver, then he or she must file an answer within 60 days from the date the plaintiff sent the request for waiver (90 days if outside of the U.S.).
What if the defendant lives in a different state than where the lawsuit was filed? For this situation, states have what are called “longarm statutes” which correspond to the state’s “long- arm jurisdiction.” Long-arm jurisdiction is, at its most basic level, the right of a state’s courts to conduct a trial against a resident of another state. This is a complicated subject and often an entire semester of law school is spent on this subject. Basically, for purposes of this book, understand that if a person from state A commits a tort in state B, then a lawsuit can generally be brought against that person in state B.
In order to conduct a trial in one state against a citizen of another state, there must be so-called “minimum contacts” between the defendant and the state where he or she is to be tried. One of the main connections relevant to personal injury cases is that, if a person commits an act of negligence which causes injury in a state, he or she has minimum contact (by virtue of committing the negligent act).
Typically, service under long-arm jurisdiction is completed by a state agency office, such as the secretary of state. In other words, the plaintiff delivers the complaint to the state agency and the state agency mails the complaint, usually by certified mail, to the resident of the other state. Service is then complete upon receipt by the defendant resident of the other state.
Alternatively, if the defendant happens to be in the state where you filed the lawsuit for some reason, you may serve him or her in person at that time, unless the only reason that he or she is there is to attend a legal proceeding. In that case, personal service must be made in the state where the lawsuit was filed, not the state where the defendant lives. This is called “tagging” the defendant.
Another common situation which should be mentioned involves service upon a business, particularly a corporation. When you sue a corporation, most states provide several options for service. You may typically serve the president or other officer of the corporation. Alternatively, in most states, corporations are required to register the name of an agent for service of process with the secretary of state or other state office which governs corporations. The plaintiff’s personal injury attorney then delivers the complaint to the secretary of state or similar office which forwards the complaint to the registered agent for service of process.
For timing purposes, which are important for calculating service of process deadlines for the plaintiff and deadlines to answer for the defendant, service is usually complete when the state office receives it rather than when the defendant corporation receives it. Serving a non-incorporated business is generally done by serving one of the owners or managers of the business. States have differing rules about what agents of a business are sufficient for service upon the business.
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