WHAT IS SERVICE OF PROCESS

What Is Service of Process?

by on June 10th, 2020 in Labor and Employment, Litigation

Service of process is the formal procedure of delivering documents to another party in litigation.

This article will review how to effectuate original service of process – notifying other party of an action. It is important to ensure service of process is made pursuant to Florida law. Otherwise, if service is not perfected, the party receiving service can move to quash the service of process.

Florida Statutes, Chapter 48, governs process and service of process. The two most common statutes in the State of Florida which address general service of process are Florida Statute 48.031 (service of process generally) and Florida Statute 48.081 (service on corporations).

Florida Statute 48.031

Florida Statute 48.031 sets forth service of process generally.

Service of original process is made by delivering a copy upon the person or by leaving copies at the individual’s usual place of abode with any person residing at the above who is at least fifteen years of age or order and informing the person of the contents.

If an employer is notified by an individual authorized to serve process that the individual intends to serve an employee, the employer shall allow this individual to serve the employee in a private area designated by the employer.

An Individual Can Also Be Served by What Is Known as Substituted Service of Process

Substituted service of process can be made on the spouse of the individual who is to be served in certain scenarios. Substituted service can also be made on an individual doing business as a sole proprietorship at his or her place of business during regular business hours. Substituted service can be made by serving the person in charge of the business at the time of service if two attempts to serve the owner were made at the place of business.

Further, if the only address for a person who is to be served discoverable via public records is a private mailbox, a virtual office, an executive office, or mini suite, substituted service can be made by leaving a copy of the service of process with the person in charge of the private mailbox, a virtual office, an executive office, or mini suite. However, this can only be done if the process server determines that the person who is to be served maintains a private mailbox, a virtual office, an executive office, or mini suite at that location.

A person who serves process (typically known as a process server) must place the date and time of service on the first page of the process served, along with his or her initials or signature, and his or her identification number if applicable. The person requesting service, or the process server, must file a return of process with the court.

Florida Statute 48.081

Florida Statutes 48.081 sets forth the procedure on how to effectuate proper service of process on corporations.

The statute provides that process against any private corporation (domestic or foreign) may be served:

  1. On the president or vice president, or other head of the corporation
  2. In the absence of any person described above, on the cashier, treasurer, secretary, or general manager;
  3. In the absence of any person described in the two above paragraphs, on any director; or
  4. In the absence of any person described in the three above paragraphs, on any officer or business agent residing in the state.

If a foreign corporation does not have any of these above-referenced officers or agents in the State of Florida, service can be made on any agent transacting business for it in the State of Florida.

Furthermore, the statute provides that as an alternative to all of the foregoing, process may be served on the agent designated by the corporation under Florida Statute 48.091. However, if service of process cannot be made on a registered agent because of failure to comply with section 48.091, service of process will be permitted on any employee at the corporation’s principal place of business or on any employee of the registered agent. In this instance, a process server can serve the process of any employee of the registered agent during the first attempt even if the registered agent is only temporarily absent from the office.

Further, if the address for the registered agent, officer, director, or principal place of business is a residence, a private mailbox, a virtual office, or an executive office or mini suite, service on the corporation may be made by serving the registered agent, officer, or director in accordance with Florida Statute 48.031.

Further, when a corporation engages in substantial and not isolated activities within the State of Florida, or has a business office within the State of Florida and is actually engaged in the transaction of business from that office, service upon any officer or business agent while on corporate business within this Florida may personally be made. It is not necessary in this instance that the action, suit, or proceeding against the corporation must have arisen out of any transaction or operation connected with or incidental to the business being transacted within the State of Florida.

Florida Statute 48.161 and Florida Statute 48.181

However, there are other sections of Florida Statute, Chapter 48, which may apply to your case. For instance, substitute service of process can be made pursuant to Florida Statute 48.161 and Florida Statute 48.181 if the party to be served is a non-resident or is concealing his or her whereabouts.

A party seeking to obtain substitute service pursuant to Florida Statute 48.161 or 48.181 must be able to demonstrate that the defendant is a non-resident or is concealing her whereabouts. Furthermore, to perfect substituted service under Florida Statute 48.161 and 48.181, a party must not serve the Secretary of State and also must mail a copy of the summons and complaint to the party to be served by registered or certified mail. When service is attempted on a party who is a natural person, the receipt must be signed by the defendant and filed with the court.

It is very important to understand that substituted service of process is an exception to the general rule that a defendant be personally served, so a party seeking to obtain substituted service of process must strictly comply with the statutory requirements so due process guarantees are preserved.

Ensure Compliance with Service of Process

It is very important to ensure proper service of process. When service of process fails to comply with statutory requirements, it is insufficient and will likely be quashed.

The litigation attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. are experienced in numerous areas of the law. Our skilled litigators are well-versed in the service of process statute, as well as moving to quash defective service of process.

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