January 26, 2022
Service of process is how courts ensure jurisdiction over a party when beginning a case. The delivery of the original documents of a lawsuit in most cases is served in person or via registered mail/restricted delivery to verify that the person has proper notification of a complaint filed against them. When that is unsuccessful, an alternative process consistent with due process usually involves publication.
Around 2010, several states began the attempt in state and federal courts to allow other methods of original and alternative service. Many courts have been hesitant. In February 2021, the National Conference of State Legislatures’ (NCSL) Civil Justice: Service of Process published a comprehensive state listing and indicated “different types of service of process are allowed, including (1) personal service, (2) domiciliary service, (2) service by mail, (4) service by publication, or (5) by any method prescribed by court order.” The method used will depend on the type of document that will be served and the circumstances of the case. The fourth “by any method prescribed by court order” has evolved in some states to include the delivery of the original service of process via email, fax, or even social media such as a posting on Twitter and/or Facebook.
During the pandemic, advocates again argued that serving someone in person has even more challenges. In December 2021, NCSC updated and expanded NCSL’s research with other forms of accepted delivery. Four states adopted rules to allow new methods.
Rule 4 of Alaska’s Rules of Civil Procedure establishes “When it shall appear by affidavit of a person having knowledge of the facts filed with the clerk that after diligent inquiry a party cannot be served with process under subsections (d) or (h) of this rule, service shall be made by posting on the Alaska Court System's legal notice website and as otherwise directed by the court as provided in this subsection.”
Texas Rule of Civil Procedure 106 allows the service of a citation “in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.” Utah Rule of Civil Procedure 106 reads similarly, allowing service of process to be “in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.”
Nevada Rule of Civil Procedure 4.4 provides a court may order a plaintiff to make reasonable efforts to provide additional notice of the commencement of the action to a defendant using certified mail, telephone, voice message, email, social media, or any other method of communication.
Is your court broadening its methods of original service of process? Let us know at Knowledge@ncsc.org or call 800-616-6164. Follow NCSC on Facebook, Twitter, Instagram, LinkedIn, or Vimeo and share your experiences.