Service of Process Flashcards
Serving process means…
Serving the defendant with a “summons” and a copy of the complaint.
A summons tells the defendant…
That she’s been sued and what she needs to do to avoid default.
In General District Court, a summons is called either:
- A warrant (if using a civil warrant as complaint); or
- A notice of motion for judgment (if using a motion for judgment as complaint).
Process may be served by…
Any person of age 18 years or older and who is not a party or otherwise interested in the subject matter of the controversy; OR by the sheriff or deputy.
An officer may serve process…
In her city or county and in contiguous localities.
Who pays the officer’s fee for service of process?
The plaintiff.
Under the Virginia descending order rule for service of process, the party serving process must first attempt:
Personal (or actual) service.
Personal service means…
delivering process directly to the defendant.
If one serving process has attempted (and found impossible) personal service, one may next attempt:
Substituted service.
The requirements in Virginia of substituted service are:
- Service at the Defendant’s usual abode;
- Served upon a member of the Defendant’s family, at least 16; and
- The process server must tell that person the purpose of the documents.
If personal and substituted service are not possible, a defendant may use…
posted service and the curative statute.
Posted service and the curative statute require…
- Posting a copy of process on Defendant’s front door;
- Mailing process to the Defendant and certifying to the clerk that the mailing took place;
- When step 2 is completed at least 10 days before plaintiff takes default judgment.
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.
The curative statute states that:
If service of process is timely and actually reaches the intended recipient, it will be effective even if the formalities are not exactly followed.
To serve process under the long-arm statute, the Virginia option requires:
- Plaintiff executing and filing an affidavit setting forth that the D is a nonresident or cannot be found with due diligence at the D’s last-known address;
- Plaintiff giving process and a copy of the affidavit to the Secretary of the Commonwealth;
- The Secretary sending process to the D by certified mail; and
- The Secretary sending a certificate of mailing to the court.
[deemed complete when certificate is received by the clerk of court.]
To serve process under the long-arm statute, the out-of-state option requires:
The plaintiff to arrange for personal service out of state by one authorized to serve process there [and in a manner authorized by that state’s laws].
For service on Domestic [Virginia] Corporations and Foreign [Non-Virginia] Corporations, a plaintiff may personally serve:
- The registered agent; or
- Any officer; or
- A director.
All corporations incorporated in Virginia [and non-Virginia corporations qualified to transact business here] must designate…
A registered agent to receive service of process.
If the registered agent of a corporation cannot be found at the registered office, then the plaintiff can serve…
the clerk of the State Corporation Commission.
If a non-Virginia corporation is not registered to do business here or has not appointed a registered agent, service can be made on any:
- Officer;
- Director; or
- Agent of the corporation found in Virginia.
If one serving process cannot find a sufficient agent of a non-Virginia corporation,
they may serve process by delivering two copies of process and an affidavit of the corporation’s last known address to the clerk of the State Corporation Commission.
Under the Nonresident Motorist Act, process may be served…
By giving an affidavit of due diligence and of the defendant’s nonresidence to The Commissioner of Motor Vehicles.
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 a court dismisses an action due to failure to serve process, they must:
give the plaintiff 30 days’ notice and hold a hearing.
After serving process, one must file…
Proof of service [“the return”] within 72 hours of serving process.
