Client Q&A: It looks like I am being sued, but I am not sure the lawsuit has been properly commenced.
It looks like I am being sued, but I am not sure the lawsuit has been properly commenced.
By Bradley J. Nash
The first step in commencing a lawsuit in New York is filing a summons and complaint in Court. But before the case really starts, the plaintiff must deliver the summons and complaint to the defendant through one of several methods permitted by statute, known as "service of process." The court does not have jurisdiction over the defendant – and the defendant therefore has no obligation to respond to the complaint – until the summons and complaint are properly served. Once service is complete, the defendant generally has twenty days to answer the complaint.
The purpose of service is to give the defendant notice of the lawsuit and an opportunity to defend against the claims. But not every form of notice is sufficient – there are specific rules that must be followed. Whether a lawsuit has properly been commenced against you depends on whether those rules have been followed.
The basic rules for serving individual defendants and business entities are described below.
Service of Process on an Individual
1. Personal Service. The first way to serve an individual defendant is so-called "personal service," in which a process server hands the summons and complaint to the defendant in person. This is the most straightforward method of service, but sometimes it can be difficult to accomplish. The process server might show up at the defendant's home or business address, only to find that the person is not there. Thus, other methods are available.
2. Substitute Service. The first alternative to personal service is "substitute service," in which the summons and complaint are personally delivered to a person of "suitable age and discretion" at the defendant's residence or place of business, and a copy of the papers is also mailed to the defendant’s last known residence or actual place of business. The two steps for substitute service (delivery and mailing) can be done in any order, but must be completed within twenty days of each other. Moreover, the mailing must conform to certain requirements that are designed to protect the defendant's privacy – the envelope must have the legend "personal and confidential" and must not indicate on the outside that the communication is from an attorney or concerns a lawsuit against the person who is being served.
3. Nail and Mail. In certain cases, where personal service or traditional substitute service cannot be accomplished, a method of service called "nail and mail" may be permitted in which the summons and complaint are affixed to the door of the defendant's residence or place of business and subsequently mailed (subject to the same mailing requirements described above).
Where the substitute service or "nail and mail" method is used, the process server must within 20 days file an affidavit of service with the Court attesting to the time, place and manner of service. Service is not deemed complete, and the defendant's time to answer the complaint does not begin to run, until 10 days after the affidavit is filed.
Service of Process on Business Entities
Different rules apply for performing service of process on business entities.
1. Corporations. A corporation may be served by personal service on an officer, director, "managing or general agent" (i.e., any person of responsibility at the corporation's office) or "cashier or assistant cashier" (i.e., a person with responsibility for the corporation's funds – not someone who stands behind a cash register).
2. Partnerships. A general partnership may be served by personal service on any of the partners, or by personal service on a "managing or general agent" of the partnership, or a person in charge of the partnership's office and mailing the summons and complaint to a partner at his last known residence or the place of business of the partnership, followed by filing an affidavit of service, as described above. The nail and mail method can also be used at the partnership's place of business.
3. Limited Liability Companies. An LLC can served by personal service on a manager.
Many business entities appoint a registered agent for service of process. Business entities may also be served through the secretary of state in the state of incorporation, or in a state where they are licensed to do business.
1. Personal Service by Mail. To save the expense of hiring a process server, a plaintiff can mail a copy of the summons and complaint to the person or entity to be served by first class mail together with a copy of a statement acknowledging service and a return envelope, with postage pre-paid. The defendant then has 30 days to sign and return the acknowledgment. The defendant is not obligated to do so, but if the acknowledgement is not signed, subsequent costs to serve the defendant (i.e., process server fees) are shifted to the defendant.
2. Other Methods. Where service cannot be accomplished through any of the methods described above, the Court can, in certain circumstances, authorize an alternative form of service, such as by email or through publication in a newspaper.
What Happens If The Defendant Is Not Properly Served?
The rules for service of process are technical, and failure to comply strictly with those rules can deprive the court of jurisdiction to hear the plaintiff's case. In state court, the plaintiff has 120 days from filing to effect service. Under recent rule amendments, a shorter 90-day time period applies to cases in federal court. If the summons and complaint are not timely served, the lawsuit is subject to dismissal without prejudice, meaning that the plaintiff can ordinarily re-file and start the process over again. Sometimes, this is nothing more than an inconvenience for the plaintiff. However, if the statute of limitations runs out before the complaint is re-filed and service is properly made, it will be too late for the plaintiff to re-file the complaint, so the failure to complete timely service can be a fatal defect.
Our firm has a great deal of experience helping defendants in civil litigation navigate the process. If you learn that a complaint has been filed against you or your business, we would be happy to assist you in determining whether you have been properly served and mounting an appropriate defense.