Monday, August 26, 2019
Unfortunately, process servers will occasionally encounter a situation where a defendant or party contests their service in court. When service is contested, the defense will file a motion to quash (often referred to as an MTQ). MTQs essentially ask a judge to render the service inadequate or that it never happened. This is a critical component of a case, as it affects the overall outcome. For process servers, having service of process quashed is certainly imperative to avoid. Knowing how to prevent this from happening is important, so we have some tips to help you be prepared if this comes up.
It is not difficult to effectuate quality service that simply cannot be contested — yet there are inexperienced, improperly trained servers, or worse, process servers who do not care. Not all process servers are the same, which is why finding a quality server is so important. Even if an experienced, excellent process server effectuates service, but the service affidavit is not filed properly with the court, opposing counsel often files a motion to quash.
Defense teams can and will contest service if they have a reasonable belief that the individual was improperly served and that a judge would render the service quashed as a result of their motion to quash. Sometimes, the accusation that service was not rendered properly (or at all) is a complete stretch, and in those cases, the judge likely dismisses the MTQ because there is adequate evidence to support that service was, in fact, effectuated. One good way to reliably capture such evidence is by using ServeManger which, among other useful features, allows you to create affidavits using job data as well as log GPS data directly from the field. Other times, there will be a reasonable doubt that service occurred, and the judge may throw out the service in those cases.
If the defense files a motion to quash service, the plaintiff needs to provide legal evidence to support that they properly effectuated service on the correct person or party. Ultimately, there are two outcomes. The first potential outcome is that the court deems the service confirmed and the MTQ is dismissed. The other outcome is that the service itself is dismissed, and the entire process starts over for that case, which is both costly, time-consuming, and frustrating for all parties involved, especially if proceedings are well underway.
Contested service is especially costly during the middle of proceedings. Service does not have to be contested at the beginning of the court proceedings, which is what can make it incredibly problematic because it can derail an entire case after resources are already allocated to said case. Since anyone can contest process service at any time in the case, process servers should be sure to keep proof of service for an extended period of time to support their work. If a process server’s work is contested, they will provide proof of service, whether it’s an affidavit other documentation, and present it to the court.
If a process server repeatedly has issues with service, they will absolutely lose business, and worse, if a process server fraudulently files a service affidavit, he or she can face criminal charges. Improperly serving a party to a lawsuit is an incredibly egregious error that could ultimately cost a process server his or her job and serious harm to those involved in the court case.
There are numerous ways in which process servers can ensure that their service is rock-solid. Obtaining a valid service affidavit, which is required, is the most important piece of the puzzle as it is the legal proof that they properly served an individual. Servers must ensure that the information is properly filled out and that the signatures are valid – and that the signatures are that of the individual who accepted service. The proof of service also includes the date, time, location of service, individual served, and it identifies the papers served. The process server must serve and file this document properly with the court in a timely fashion by the deadlines set by the court.
Process servers can also provide further evidence of their service by using GPS that will log the date, time, and exact geographical location of service, wear a body camera that will record the service, or take pictures to provide photographic evidence of the service. Be sure to check local laws before using cameras as some states have regulations regarding the use of recording devices.
When looking for a process server, check out civil process service associations that help to keep servers educated and informed about changing laws and industry regulations. Additionally, ServeNow is a directory of servers that helps people find quality servers in their area. If you’re a process server who would like to be a part of our pre-screened network of quality servers, contact us today.
Have more information on how to effectuate service on those who are physically or mentally disabled or incapacitated? Share your experience by joining our groups on LinkedIn* and Facebook or contact us.
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