So you’ve been sued by a debt collector, and you don’t know what to do next. The summons says you need to respond to the summons and complaint, then file your response with the court and serve it on the attorney suing you. But what does that mean? A process server served you with the document, so does this mean that you have to hire a process server to serve your response? This post will help explain what to do and how to serve legal pleadings.
What is Service?
In a lawsuit, service is simply the formal delivery of legal documents in a lawsuit. Many people are familiar with the term as it relates to service of process, or serving a summons to initiate a lawsuit. If you’re creditor has sued you for a debt, you were probably sued by a process server. There are other ways to accomplish service of process, like certified mail return receipt requested, hand delivery, or alternative service like e-mail, newspaper publication, or posting a copy of the summons on the defendant’s front door.
But if you’re a debtor, this doesn’t really matter to you. You’ve been served with the summons and complaint and you need to know how to serve your legal documents on the plaintiff. Again, service of process is the formal delivery of the summons and complaint to initiate a lawsuit, but service is the formal delivery of any legal document in the lawsuit. So every time you file a document with the court (including your response to the summons and complaint) you must serve that document on the other party.
What Documents Do I Have to Serve?
If you have a document you want the judge or the other party to see, you should serve it. Some examples of documents you should serve are:
- Answer (or, your response to the summons and complaint)
- Initial Disclosures (your list of helpful witnesses and documents that will help you prove your case)
- Discovery requests (written questions you want your creditor to answer under oath)
- Discovery responses (responses to the written questions the creditor asked you to answer under oath)
- Motions (a request for the court to take a specific action)
- Proposed orders you want the judge to sign
- A written notice or appearance
- Any other document you file with the court
How Do I Serve Documents?
Every court has their own specific rules on how you may or may not serve legal documents. The first step is to learn your court’s rules. Most states’ rules are called something like [State]’s Rules of Civil Procedure. You can probably find them through a Google search, or by finding your court’s website, which probably has a link to the court rules. You’ll want to find the rule that talks about serving pleadings and papers that come after the original complaint.
For our example, we’ll use the Federal court rules. If you’ve been sued for a debt, it’s highly unlikely that your case will be in Federal court. You’re state’s rules may differ slightly, but the Federal rules are similar to most state’s rules so it is a good universal example.
The Federal rule governing serving documents after the original complaint is Rule 5. It reads as follows:
“In General. Unless these rules provide otherwise, each of the following papers must be served on every party:
(A) an order stating that service is required;
(B) a pleading filed after the original complaint…
(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.”
So the rule outlined exactly what we need to serve. If we keep reading, the rule tells us how to serve the documents:
“Service: How Made.
(1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.
(2) Service in General. A paper is served under this rule by:
(A) handing it to the person;
(B) leaving it:
(i) at the person’s office with a clerk or other person in charge or, if not one is in charge, in a conspicuous place in the office; or
(ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(C) mailing it to the person’s last known address – in which event service is complete upon mailing;
(D) leaving it with the court clerk if the person has no known address;
(E) sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means that the person consented to in writing – in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or
(F) delivering it by any other means that the person consented to in writing – in which event service is complete when the person making service delivers it to the agency designated to make delivery.”
In reading the rule we can see that if the creditor has an attorney (highly likely), then you must serve the documents on the attorney, not the creditor. We can also see that we have a few options for serving the documents:
- Handing it directly to the attorney (probably not time effective, nor is it desirable);
- Leaving it at the attorney’s office (again, not time effective or desirable);
- Mailing it to the address the attorney listed on the complaint (probably a good option);
- Leaving it with the clerk if you don’t know the attorney’s address (this is probably not a likely scenario);
- If the court has an electronic filing system and the attorney is registered with the system, the attorney will automatically receive a copy of anything you file (this is frequently not an option for debtors representing themselves); or
- In any other way the parties agree upon in writing (this means that if you can convince the attorney to accept your documents via email and obtain the agreement in writing, you can simply email a copy of the document to the attorney when you file it.
Other courts may have other methods of service. For example, some courts may allow email service without a written agreement. Some courts may allow service via a package carrier like UPS or Fedex.
The most common method of service is mail. To serve the document in the mail, you simply mail a copy of whatever you filed to the attorney. That’s it! If you serve by email, you just email a copy. If you hand-deliver, you just hand the document over. It’s really that simple.
When Should I Serve Documents?
You should serve a document on the opposing attorney every time you file something with the court. You can get into trouble if you give something to the judge but the other side doesn’t see it. So a general rule of thumb is that if you give it to the court, you should give a copy to the other side.
Why Should I Serve Documents?
Service is the way the parties formally exchange information. The benefits apply both ways. Just like you would not appreciate the opposing attorney asking the court to take some action without notifying you, the other side won’t appreciate you contacting the court without notifying them. Service is just the formal method by which the courts ensure that the parties have properly exchanged documents.
Add a Certificate of Service to All of Your Documents
At the end of every document you file, you should include a “Certificate of Service.” A Certificate of Service is nothing more than a written statement outlining the method of service, the date of service, and on whom service was made. For example, at the end of my answer I might include the following statement:
“I hereby certify that on [today’s date] I mailed a copy of the foregoing on John Doe Attorney, 111 Lawyer Street, New York, NY.”
If the other side ever claims that you didn’t serve the document on them, you can show the judge the certificate of service indicating that you did.
Proof of Service
You can even go one step further if you think the other side will misrepresent to the judge whether or not you served the document. If you mail by service, you can mail the document certified mail, return receipt requested. This means that a postal worker will hand deliver the document to the opposing attorney and require a signature. You will then receive a copy of the signed card in the mail. If there is any question, you will have the signature certifying receipt.
Service really isn’t a complicated concept, but you want to make sure you are following the court rules. Failure to do so could result in the court not accepting the document you filed.
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