Service of Process

Service of Process in the United States

Contents:

Authority

Federal law

The Federal law governing service of process in civil cases is found in Rule 4, Federal Rules of Civil Procedure, Rule 4(f)(1) F.R.Cv. P. (28 U.S.C. Appendix Rule 4):

“(f) Service Upon Individuals in a Foreign Country.

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(C) unless prohibited by the law of the foreign country, by

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.”

Consular Role

Usually, the consular officer becomes involved in service of process requests in the following situations:

  • General Information:  Referring inquirers to the Department of State, Bureau of Consular Affairs Internet web page judicial assistance feature, Service of Legal Documents Abroad information, for a general overview;
  • Notarial for Service by an Agent:  Administering an oath or affirmation (see about this on the corresponding entry) for an affidavit of service by a private agent when service of process is accomplished by an agent in the foreign country such as an attorney or process server. (see about this on the corresponding entry)
  • Notarial for Waiver of Service:  Providing a notarial service when the person to be served executes an acknowledgment or affidavit on a voluntary waiver of service before a consular officer.  (see about this on the corresponding entry)
  • Letters Rogatory: (see more about this on the corresponding entry).  Transmitting a letter rogatory to the Foreign Ministry of the host country under cover of a diplomatic note when service is attempted pursuant to a letter rogatory (28 U.S.C. 1696; 22 CFR 92.54).  Letters rogatory are forwarded to the U.S. embassy by the corresponding Department or forwarded directly by the requester. This entry provides a description of a variety of methods used to serve process abroad.  Letters rogatory are also used for service of documents under the Foreign Sovereign Immunities Act (FSIA) (28 U.S.C. 1608) on an agency or instrumentality of the foreign government.  Such cases are transmitted to the responsible department for the service provisions of the FSIA. (see about this on the corresponding entry)

Prohibition against Service of Process by U.S. Foreign Service Officers

Foreign Service officers are prohibited by Federal regulations (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, state law notwithstanding, unless directed by the Department.  Such authorization is extremely rare, and requires authorization.  This entry provides information on service of subpoenas by consular officers pursuant to 28 U.S.C. 1783; 22 CFR 92.86.

Legal Materials

The rules for service of process are generally included in a state’s stautory Code. A summary of each state’s rules can be found the state’s legal encyclopedia or a treatise on civil procedure.

Companies: U.S. companies are generally required to file with the Secretary of State in each state where they do business. This filing usually includes a registered agent designated to receive service and an address where the agent can be served. For information on how to get a record of the Secretary of State filing with this information, see “Secretary of State Records.”

Banks in N.Y.: In NY, all out-of-state banks must designate the Superintendent of Banks to receive process for them (NY Banking Law, Section 200), even if they are in liquidation (Section 206). See also Section 34 and cross sections listed there.

Unions: Unions are generally not incorporated and generally do not file business registration records with a Secretary of State. State law determines how to serve process on a union (e.g., under Virginia Code § 40.1-68 you serve the “clerk of the State Corporation Commission”; under Florida Code 48.141 you serve the “president or other officer business agent, manager or person in charge”).

Foreign

The main treaty on serving process abroad is part of The Hague Convention, “Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” [TIAS 6638], which is reprinted in the United States Code (see “Hague Convention” in the World legal Encyclopedia); it is also posted online by the Hague Conference on Private International Law. For more information, see:

(1) The U.S. State Department’s Service of Process guide.

(2) The Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (HCCH Publications);

(3) “Service of Process Abroad: A Practical Guide to Service Under the Hague Service Convention and the Federal Rules of Civil Procedure,” 24 International Lawyer 55 (1990);

(4) Too Much Process, Not Enough Service: International Service of Process Under the Hague Service Convention, 86 Temple L. Rev. 331 (2014).

For information on individual countries, check out (1) the Martindale-Hubbell International Law Digest summaries, usually under “Actions” or “Process” and (2) the State Department’s excellent Judicial Assistance page. For more information, call the State Department’s Office of Overseas Citizens Services (202-647-5226), which compiles legal sheets on many countries.

If that doesn’t work, call the country’s U.S. Embassy (usually in D.C.), the country’s Mission to the U.N. (usually in N.Y.), the U.S. Embassy (in that country) and/or an attorney practicing in that country.

Note on Agents: In many countries, domestic corporations do not designate agents to receive service of process. They just provide an official address where service can be made. I have been told that this the case in Canada, China, Japan, South Korea and the United Kingdom. To be sure, contact the relevant country’s business registration agency and/or the International Services division of CT Corp (800-428-4685).

Process Servers

You can look up process servers in the Process Servers Directory posted by Process Servers International (www.iprocessservers.com/index.asp), in the National Directory for Service of Civil Process (Fort Worth: Knowles) and/or the National Directory of Process Servers (Denver: National Directory of Process Servers, Inc.). The National Directory of Process Servers is also available on Westlaw (NDPS). Another source:The advertisements in the relevant state’s legal newspaper or in the front of the state’sLawyers Diary and Manual.

PROVISO ON VIOLATIONS OF JUDICIAL SOVEREIGNTY

Certain countries have informed the U.S. Department of State that some methods of service constitute violations of their judicial sovereignty. On November 7, 2000, the Department of State notified the Administrative Office of U.S. Courts of the expressed concerns of these countries to service by mail. See the Department of State Internet page, Office of the Legal Adviser, Digest of International Law feature. See Memorandum of the Administrative Office of the U.S. Courts (November 6, 1980) at Cumulative Digest of United States Practice in International Law, 1981-1988, Department of State, Office of the Legal Adviser, 1447 (1994).

Service of Process in the Context of Service of Process on Foreign Defendants

Service of Process in Federal Court Proceedings in International Civil Litigation

Analysis of the Service of Process in Federal Court Proceedings in relation with the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants.

Service of Complaint and Summons Under Rule 4 of the Federal Rules of Civil Procedure

Read more information about Service of Complaint and Summons Under Rule 4 of the Federal Rules of Civil Procedure

Service of Summons and Complaint as a Jurisdictional Requirement Under the Federal Rules of Civil Procedure

Read more information about Service of Summons and Complaint as a Jurisdictional Requirement Under the Federal Rules of Civil Procedure

Service of Complaint and Summons as a Means of Notice Under the Federal Rules of Civil Procedure

Read more information about Service of Complaint and Summons as a Means of Notice Under the Federal Rules of Civil Procedure Service as Commencing an Action and Tolling Statutes of Limitations Under the Federal Rules of Civil ProcedureRead more information about Service as Commencing an Action and Tolling Statutes of Limitations Under the Federal Rules of Civil Procedure

Service of Process in the Context of Service of Process Abroad

Service of Process by Central Authorities Under Article 6 in International Civil Litigation

Analysis of the Service of Process by Central Authorities Under Article 6

Service Under Article 5(a) in the Manner Used For Service In Domestic Actions

Read more information about Service Under Article 5(a) in the Manner Used For Service In Domestic Actions

Service by Central Authority Pursuant to Article 5(b)

Read more information about Service by Central Authority Pursuant to Article 5(b)

Service by the Central Authority Pursuant to Article 5?s ?Second Paragraph?

Read more information about Service by the Central Authority Pursuant to Article 5?s ?Second Paragraph?

Service of Process in the Context of Foreign Legal Systems

Service of Process in Foreign Legal Systems in International Civil Litigation

Analysis of the Service of Process in Foreign Legal Systems

Service of Process in the Context of Service of Process on Foreign Defendants

Service of Process on Foreign Defendants in Contemporary State Court Proceedings in International Civil Litigation

Analysis of the Service of Process on Foreign Defendants in Contemporary State Court Proceedings in relation with the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants.

Service of Process in the Context of Service of Process Abroad

Service of Process by Central Authorities Under Article 5 in International Civil Litigation

Analysis of the Service of Process by Central Authorities Under Article 5

Service of Process in the Context of International Disputes

Service of Process in the United States: An Historical Overview in International Civil Litigation

Analysis of the Service of Process in the United States: An Historical Overview in relation with the Service of U.S. Process on Foreign Persons.

Service of Process in the Context of Foreign Legal Systems

Rules Governing Service of Process in Foreign Courts in International Civil Litigation

Analysis of the Rules Governing Service of Process in Foreign Courts

Service of Process in the Context of Service of Process on Foreign Defendants

No Service of U.S. Process Abroad by U.S. Consuls in International Civil Litigation

Analysis of the No Service of U.S. Process Abroad by U.S. Consuls in relation with the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants.

Service of Process in the Context of Service of Process on Foreign Defendants

Contemporary U.S. Rules Governing Service of Process on Foreign Defendants in International Civil Litigation

Analysis of the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants

Service of Process in the Context of Service of Process Abroad

Service of U.S. Process Abroad Selected Issues in International Civil Litigation

Analysis of the Service of U.S. Process Abroad Selected Issues

Service of Process in the Context of International Disputes

Service of U.S. Process on Foreign Persons in International Civil Litigation

Analysis of the Service of U.S. Process on Foreign Persons.

Concept of Service of Process in Judicial Assistance

In this context, a definition of Service of Process may be as follows: The delivery or legal equivalent of delivery of a complaint, summons, or subpoena, upon a person or entity with the result that the person must respond. Service of process frequently refers to the legal effective delivery of the complaint and summons, commencing a lawsuit to the defendant.

Service of Process (Pleadings)

This section introduces, discusses and describes the basics of service of process. Then, cross references and a brief overview about Pleadings is provided. Finally, the subject of Civil Procedure in relation with service of process is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Service of Process (Practice)

This section introduces, discusses and describes the basics of service of process. Then, cross references and a brief overview about Practice is provided. Finally, the subject of Civil Procedure in relation with service of process is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Resources

See Also

  • Abroad Evidence
  • Abuse of Process
  • Choice of Forum Clause Definition
  • Choice of Forum Clause Sample
  • Choice of Forum Provision
  • Choice of Law
  • Choice of Law Rule
  • Collecting and Enforcing Judgments
  • Conflict of Laws
  • Convention on the Taking of Evidence Abroad
  • Cross-Border Discovery
  • Embassies
  • Forum Selection
  • Hague Convention
  • International Judicial Assistance in Administrative Matters
  • International Judicial Assistance in Civil Matters
  • International Judicial Assistance in Criminal Matters
  • Judicial Branch Jurisdiction
  • Judicial Jurisdiction Definition
  • Legislative Jurisdiction
  • Obtaining Evidence Abroad in Criminal Cases
  • Process Servers
  • Secretary of State Records
  • Service of Process
  • Supreme Court Jurisdiction
  • Taking of Evidence Abroad
  • United Nations

Service of Process Definition in the context of the Federal Court System

The delivery of writs or summonses to a party in a lawsuit or someone involved in the case.

Service of Process: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Service of Process. This part provides references, in relation to Service of Process, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Service of Process by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Service of Process and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Service of Process or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Service of Process and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Service of Process. Finding these decisions can be challenging. In many cases, researchers about Service of Process should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Service of Process when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

Leave a Comment