Serving Notice While Six Feet Apart: Substituted Service in Light of COVID-19
This article is part of Wolf Greenfield's COVID-19 Resource Center. To access the full resource center, click here.
All lawsuits in federal district court start with the filing of a complaint. But that complaint, amongst other documents, must eventually reach the defendant for a lawsuit to truly begin—this is a necessary litigation step called “service of process.” Service of process ordinarily requires that the person being served receive the documents directly from another person, typically a professional process server. Service of process is a fundamental part of legal civil procedure, because it guarantees that a defendant is notified of the lawsuit. If a defendant is not served with process, a lawsuit cannot proceed.
In the face of COVID-19, however, practically every state has issued some form of “stay-at-home” order, and several professional process servers have suspended their operations for the foreseeable future. Even though personal service is now virtually impossible, lawsuits have not simply ceased to be filed—nor can they. Instead, plaintiffs have been moving courts for permission to use “substituted service,” with varied results. With the end of social distancing still uncertain, this article explains what litigants on both sides of the “v.” need to know about service during this time.
Requirements for Service
Under Federal Rule of Civil Procedure 4, a plaintiff must serve the complaint and signed summonses on any and all defendants within ninety days of the date they filed the complaint. Rule 4 also outlines what constitutes sufficient service of process. It is not enough that the defendant knows about the lawsuit, process must be served according to the requirements of Rule 4—otherwise, the court cannot exercise personal jurisdiction over the defendant. Indeed, insufficient service of process is grounds for a motion to dismiss the case under Rule 12(b)(5). And if the applicable statute of limitations has run, a plaintiff may be unable to correct any error in service and will ultimately be barred from receiving any recovery.
While personal service is not the only method of service, it is the most common and accepted method because it generally provides the strongest defense to a claim of insufficient process. Indeed, for both service of an individual and a corporation, Rule 4 lists “delivering a copy of the summons and of the complaint to the [defendant] personally” first amongst its options, and the other listed options—service on someone who lives with the defendant at his residence or service on his registered agent—contemplates some in-person contact.
But besides those specific options for service, Rule 4 also allows service that complies with service rules of the state in which the district court is located or of the state in which service is made. These local rules will therefore determine what options a plaintiff has if they are unable to serve the defendant personally—which is known as “substituted service.” Options for substituted service include service by mail or sometimes e-mail. Local service rules do vary—for example, not all states permit substituted service by certified mail. Therefore, it is important to know what substituted service methods will be sufficient to survive a motion to dismiss—or to assess if you have been sufficiently served.
When Is “Substituted Service” Permitted?
Since substituted service is typically considered less desirable than personal service, many courts require that the plaintiff demonstrate that personal service is not possible or practical in a given case. While requirements vary depending on the venue, generally courts will want a plaintiff to show some combination of the following: that ordinary service is impracticable, that due diligence has been made to attempt to make personal service, and that substituted service will reach the party and effect notice.
Courts Vary on How to Approach Service in the Face of COVID-19
In the midst of a pandemic, it would seem that demonstrating that personal service is impractical or impossible would be a given. The cases described below, however, all had substantially similar motions for substituted service yet had different outcomes. Courts may converge on an approach as the COVID-19 pandemic continues, but the cases below give a sense of how judges are approaching the issue thus far.
A. COVID-19 Justifies Substituted Service
In OHVA, Inc. v. eProcessing Network LLC, 4-20-cv-01247 (S.D. Tex. Apr. 15, 2020, Order) before Chief Judge Rosenthal, the court granted plaintiff’s motion to serve defendant by registered mail and/or by attaching a copy of the complaint to defendant’s doorway. The court specifically noted that “Plaintiff asserts to the Court that the manner of service ordered herein will be reasonably effective to give Defendant notice of the lawsuit.” The complaint was filed on April 8, 2020.
B. COVID-19 Does Not Justify Substituted Service
In Aristors Licensing LLC v. Raptor Technologies LLC, 4-20-cv-01116 (S.D. Tex. Apr. 15, 2020, Order) before Judge Hughes, the court denied plaintiff’s motion to serve defendant by registered mail and/or by attaching a copy of the complaint to defendant’s doorway. The court did not provide any reasoning, and only ordered that the defendant needed to be served within the next fifteen days. The complaint was filed on March 30, 2020.
C. COVID-19 Might Justify Substituted Service
In Hydro Net LLC v. Inhand Networks, Inc., 1-20-cv-00357 (E.D. Va. Apr. 15, 2020, Order), the court denied without prejudice plaintiff’s motion to serve defendant by registered mail and/or by attaching service to defendant’s doorway. The court did not foreclose the possibility of serving the defendant in this manner, but instead suggested that the plaintiff investigate “the alternative of requesting that defendant waive service pursuant to Federal Rule of Civil Procedure 4(d).” The court declared that it would grant the motion for substituted service if the defendant did not agree to waive service. The complaint was filed on March 31, 2020.
In Hydro Net LLC v. Deere & Co., 1:20-cv-02040 (N.D. Ill. Apr. 9, 2020, Order), without a motion for substituted service, the court ordered that the plaintiff had 90 days to serve the defendant and indicated that it would grant a further extension if the plaintiff was unable to serve the defendant by mid-June. The complaint was filed on March 31, 2020.
Serving Notice While Social Distancing
While how to satisfy requirements for service of process in the midst of the COVID-19 pandemic is a developing issue in the law, there are a couple of important takeaways for both plaintiffs and defendants facing the beginning of a lawsuit.
For plaintiffs, you should be aware of your options for service depending on where you have brought your case. At this point, it is likely impractical to personally serve a defendant, but it also remains unclear whether social distancing may be relaxed within the timeframe for service. You should be keeping in mind any applicable statutes of limitation, especially if you are coming up against a deadline as service may be delayed and insufficient service may not be correctable later on.
For defendants, you should understand your obligations if more courts begin suggesting that plaintiffs request a waiver of service. If you are without good cause to refuse waiver, a court must, under Rule 4, impose the costs of serving you and reasonable expenses, including attorney’s fees, of any motions required to collect those expenses.
For both, it is important to know what will constitute sufficient service of process under the rules of your venue. Your attorneys can help you understand your options and strategy for approaching service or responding to service or requests for waiver of service.