Service of process—service of the documents initiating a civil lawsuit—is a frequent issue of concern for judicial officials and practitioners. Typically, we are concerned about service of process because it is one of the necessary elements of personal jurisdiction. A defect in the manner of service or in the process itself (i.e., the initiating documents) can prevent the court from exercising jurisdiction over the person purportedly served. Questions about service of process and personal jurisdiction are extensive and complex and have been the subject of many blog posts, but this post will explore a different aspect of service of process—its interaction with statutes of limitations.Continue Reading
“You’ve Been Served?”: Private Process Servers in North Carolina
According to Hollywood, court process is served by guys wearing backward baseball caps pretending to deliver pizzas. They roll up, toss a summons-stuffed cardboard box at an unsuspecting defendant-to-be, then ride away proclaiming, “You’ve been served, dude!” (Remember Seth Rogan practicing for the gig in Pineapple Express? Oh, wait. I mean, no, I haven’t watched that movie either.)
Of course this isn’t how private process servers really do things. Even in states where private process servers are authorized to do this work, they typically have to follow a tighter set of rules. But in North Carolina, things are even stricter—the use of private process servers is very limited in the first place. In most cases, the sheriff is the proper service agent for personal service of summonses, and the sheriff must refuse or neglect to serve, or must actually try and fail to effectuate service, before private process servers come into play. Locklear v. Cummings, 822 S.E.2d 587, 593 (N.C. Ct. App. 2018); N. Carolina State Bar v. Hunter, 217 N.C. App. 216, 224 (2011). Continue Reading
Service by Publication When Defendant is in Another Country
It is increasingly common that domestic relations cases in North Carolina involve defendants who reside outside of the United States. In child custody cases, especially cases that include a request for findings related to Special Immigrant Juvenile Status, it is increasingly common for plaintiff to allege that although she knows defendant lives in another country, she has been unable to find the actual location of defendant in that foreign country. Rule 4(j2) of the Rules of Civil Procedure allows service by publication when after using appropriate due diligence to locate a defendant, plaintiff is unable to find an address to use for personal service. Notice of service must be published in the area where plaintiff believes defendant to be located. If there is no “reliable information” as to defendant’s location, notice can be published in the area where the action is pending.
Does this same rule apply when defendant is known to be in another country?
Small Claims Mailbox: Questions from Magistrates about Service of Process
Service of process in small claims cases, like many other small claims procedures, requires reference to North Carolina’s Rules of Civil Procedure (GS 1A-1) as modified by GS Ch. 7A, Art. 19 (Small Claims Actions in District Court). In today’s blog post, I’m going to explore that law by sharing some (lightly edited) email inquiries I’ve received from magistrates over the last few years. But first, a quick overview of why we care so much about service of process.Continue Reading
Minimum Notice Requirements in Small Claims Actions
It’s not hard to understand why every state in the United States offers its residents a small claims court. Small claims courts offer two advantages increasingly hard to come by in the court system: they’re cheap, and they’re fast. In 2009 the North Carolina General Assembly took steps to ensure that small claims cases aren’t decided too fast by enacting minimum notice requirements. Prior to this legislation, a small claims defendant might be served Monday evening for a trial held Tuesday morning. The legislation enacted two separate amendments establishing different minimum notice requirements for (1) summary ejectment actions, and (2) all other small claims cases. As we shall see, despite their differences, the guiding principles for magistrates implementing the legislation are the same for both types of lawsuits.