Service of Process

Question 1

what is “serving process”?

Answer 1

serving process means serving the defendant with:
(1) “summons”; and
(2) copy of the complaint

Question 2

what is the “summons”?

Answer 2

the summons tells the defendant that they have been sued and what they need to do to avoid default

Question 3

what is a summons called in GDC?

Answer 3

in GDC, a summons is called a
- “WARRANT” (if you use a civil warrant as completion)
OR
- “NOTICE OF MOTION FOR JUDGMENT” (if you use a motion for judgment as complaint)

Question 4

what is a summons called in Circuit Court?

Answer 4

in Circuit Court, a summons is called a “SUMMONS”

Question 5

who can serve process?

Answer 5

process may be served by
1) an ADULT CIVILIAN who is NOT INTERESTED in the case; or
2) sheriff or deputy

Question 6

where may an officer serve?

Answer 6

an officer may serve in their city or county and in contiguous (bordering) localities

Question 7

who pays the officer’s fees for service of process?

Answer 7

the plaintiff pays the officer’s fees

Question 8

what are the types of way to service an individual?

Answer 8

there are 3 types of ways to effect service on an individual
(1) personal / actual service
(2) substituted service
(3) posted service and curing statute

Question 9

when can you use which type of service?

Answer 9

VA follows a DESCENDING ORDER RULE - meaning that the party serving process can move down the ladder ONLY if one of the “higher” forms of service is impossible

Question 10

(1) personal /actual service

Answer 10

Personal service means delivering process DIRECTLY to the defendant.

This must be tried and unavailable before other methods may be used.

Question 11

(2) substituted service

Answer 11

a) service must be at the defendant’s USUAL ABODE

b) on a member of the defendant’s family AT LEAST age 16 and NOT. guest

c) the process server must tell that person the PURPOSE OF THE DOCUMENTS

Question 12

(3) posted service and curing statute

Answer 12

If personal and substituted service are not possible, a defendant may be served by:
a) POSTING a copy of process
b) on her FRONT DOOR;
c) and, at least 10 days before taking default judgment, mailing process to her and certifying to the clerk that the mailing took place.

In circuit court, when the plaintiff mails the copy of the pleading to the defendant, she should also state that if the defendant defaults, after 10 days from the mailing, the plaintiff may seek default judgment.

Question 13

what is the “curing statute”

Answer 13

if process is served incorrectly (posted service - i.e. given to a person below the age of 16 - i.e. D’s 10 yr old son) - service is ok IF:
–> D actually and TIMELY received process

**curign statute does not apply if it was not (1) actually received or (2) timely received (i.e. after 10 day period before default)

Question 14

when does the ‘curing statute’ never apply?

Answer 14

the curing statue never applies in:
(1) divorce cases
(2) annulment cases

Question 15

Can the plaintiff request by mail that the defendant waive formal service of process?

Answer 15

Yes, it works the same as in federal court.

To request waiver, the plaintiff mails the defendant a notice and request to waive service. The plaintiff MUST include (1) a copy of the complaint; and (2) 2 copies of a waiver form, with prepaid means of returning the form.

If the defendant executes and mails the waiver form to the plaintiff within 30 days (60 days if D is outside US) - she waives service of process
**waiver can be used for individuals as well as entities

Question 16

if D is in VA for another CIVIL case - are they immune from service?

Answer 16

if D is in VA to be a witness in another civil case - she would not be immune from service of process for VA - but would be for federal court

Question 17

when is D immune from service in VA?

Answer 17

There is immunity for:
a) one summoned to appear before the grand jury or
b) in a criminal case;

even then, the court can deny immunity if it would thwart efficient administration of justice.

Question 18

What type of service is allowed under VA’s long arm statute?

Answer 18

there are 2 options
Option 1 - has 4 requirements
Option 2

Question 19

Option 1 - 4 requirements under long-arm statute

Answer 19

(1) The plaintiff executes and files an affidavit setting forth that the defendant is a nonresident or cannot be found with due diligence at the defendant’s last-known address.

(2) The plaintiff then gives process and a copy of the affidavit to the Secretary of the Commonwealth.

(3) The Secretary then sends process to the defendant by certified mail.

(4) After the Secretary of the Commonwealth mails process to the defendant, what does the Secretary do? Sends the certificate of mailing to the court.

Question 20

when is option 1 service under long arm statute deemed complete?

Answer 20

This type of service is deemed complete when the certificate is received by the clerk of court.

Question 21

what is option 2 for service under the long-arm statute?

Answer 21

The plaintiff can arrange for personal service out of state by one authorized to serve process there. (Of course, must have basis for personal jurisdiction under the long arm statute.)

Question 22

how do we serve process on a domestic corporations?

Answer 22

All corporations incorporated in Virginia (and non-Virginia corporations qualified to transact business here) must DESIGNATE a REGISTERED AGENT to receive service of process.

A plaintiff may personally serve
(1) the registered agent or
(2) any officer or
(3) a director.

If the registered agent cannot be found at the registered office, then the plaintiff can serve the clerk of the State Corporation Commission.

Question 23

how do we serve process on other foreign corporations?

Answer 23

If a non-Virginia corporation is not registered to do business in VA OR has not appointed a registered agent, service can be made on any
(1) officer,
(2) director, or
(3) agent of the corporation found in Virginia.

If none is found, 2 copies of process and an affidavit of corporation’s last known address are served on the clerk of the State Corporation Commission.

Question 24

Service under the Nonresident Motorist Act

Answer 24

The Commissioner of Motor Vehicles also may be served.

The plaintiff gives an affidavit of due diligence and of the defendant’s nonresidence; if affidavit is false, there is no jurisdiction.

Question 25

when is Constructive Service - Service by Publication - used?

Answer 25

Service by publication is never available in personam; it is used only in cases concerning RIGHTS TO PROPERTY, or status.

Question 26

how does the plaintiff serve service by publication

Answer 26

Service by publication is
OK only if the plaintiff gives affidavit that he has used due diligence to find the defendant, but without success.

Question 27

what must affidavits in support of publication notice state?

Answer 27

Affidavits in support of publication notice must state the last known address of the defendant or the fact that the address is unknown.

Question 28

what is “return” (proof of service?)

Answer 28

The return is a report to the court by the officer who served process, relating what she did to make service.

Question 29

what must the return state?

Answer 29

The return must state the reason for failing to serve the defendant personally.

Because it is
by an officer, it’s prima facie evidence that what’s stated is true.

Such a report can be made by affidavit by a civilian; if so, it is merely evidence of service (not prima facie evidence).
**This difference may matter in a default, where you’d need to prove that the defendant was served. That’s why folks have the sheriff or deputy make service. The return must be filed within 72 hours of serving process.

Question 30

who signs proof of service?

Answer 30

Proof of service is signed by the person making service, and indicates the jurisdiction and state where accepted

Question 31

timeliness of service - when is a case commenced?

Answer 31

a case is commenced WHEN FILED (not when it was served) - which tolls the statute of limitations (i.e. 1 day before limitation expires is ok)

Question 32

how much time does the P have in order to get process served within time of filing?

Answer 32

BUT Plaintiff must have process served within 1 year of filing OR the case will be dismissed UNLESS he shows due diligence in trying to make service.

Before dismissing, the court must give Plaintiff 30 days’ notice and hold a hearing.

Question 33

when is formal notice not needed?

Answer 33

after the party has already been brought before the court for the first time
i.e.
- responsive pleadings,
- counterclaims
- motions
- discovery, etc.

Question 34

how is process served when it is not formal?

Answer 34

Instead, the party
just mails (or sends by commercial delivery service), faxes, or makes in-hand delivery of a copy of the paper (or, with consent of the party to be served, by email) to all counsel of record on or before the filing date.

Question 35

what must counsel for the party served do once party is served?

Answer 35

Then, counsel for the serving party certifies the fact of delivery on the document filed with the court.

Question 36

when is service effective?

Answer 36

Whenever a party uses the mail, you add 3 days to the time to respond. Service is effective at mailing or delivery, but a fax after 5:00 p.m. is not effective until the next business day

Question 37

how much time does the defendant get to respond if served by publication?

Answer 37

If service by publication
is used, the defendant has 50 days in which to respond to complaint.

Instead, in a non-in personam case against nonresident, the plaintiff can ask the sheriff in the defendant’s county to serve process on him. If he does so, the defendant must respond within 21 days.