Service is the formal delivery of litigation documents to give the opposing litigant notice of the suit against them. The concept requiring proper service before individuals may be brought to court is also often referred to as service of process. In addition to federal statutes and rules, the Fifth Amendment of the Constitution requires procedural due process protections in the form of adequate service.
In federal court, under Federal Rule of Civil Procedure Rule 4, a plaintiff initiates a lawsuit by serving on a defendant a summons with a copy of the complaint. Federal Rule of Civil Procedure Rule 5 provides further rules for service and states that the following must be served on every party: “(A) an order stating that service is required; (B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants; (C) a discovery paper required to be served on a party, unless the court orders otherwise; (D) a written motion, except one that may be heard ex parte; and (E) a written notice, appearance, demand, or offer of judgment, or any similar paper.”
Rule 5(b) allows parties to establish service through personal service, leaving it at the person’s office or usual place of abode, service by mail, leaving it with the court clerk if the person has no known address, filing it with the court’s electronic filing system, or by serving the person through any means to which they consented. Additionally, Rule 4(e)(1) allows plaintiffs to serve a person in the federal judicial district of the suit by any means which would be acceptable under the law of the state wherein the district is situated.
Proper service is a requirement before an individual can be brought to court. In federal court, individuals can move to dismiss a complaint before filing an answer if there was not proper service under Federal Rule of Civil Procedure Rule 12(b)(5). For example, in Systems Signs Supplies v. U.S. Dept. of Justice, the Fifth Circuit upheld a dismissal of a complaint for improper service of process under Rule 12(b)(5) where the plaintiff did not service the defendant, in this case the U.S. Department of Justice, within the required time period, even though the U.S. Attorney defending the case advised plaintiff of the time period. State long-arm statutes may also allow a plaintiff to serve a defendant in another state for acts done in the state, but must comport with procedural due process.
[Last updated in April of 2021 by the Wex Definitions Team]
