Between the Lines: Alternative Service of Process 101

Most courts require personal service, the direct, physical delivery of legal documents to the individual named in the documents, and allow for substitute service, the delivery of those documents to an adult who accepts service on behalf of the named individual. Sometimes, the party delivering the documents is unable to serve an individual through either of these means. When that happens, alternative service may become an option.

What is Alternative Service?

Alternative service of process is the delivery of legal documents by non-traditional methods. Pursuant to every U.S. citizen’s 5th amendment right to due process under the law, defendants have a right to know that they are party to a lawsuit or other legal action. Service of process, the delivery of legal documents by an unbiased third party, is the formal procedure that alerts parties, most often defendants to their involvement in a court case. 

Personal service is generally the preferred method of notification due to its directness, a confirmed handoff of information. However, it is not always possible to make the delivery within a reasonable number of attempts and time. To give plaintiffs and their attorneys a chance to inform defendants that are difficult to serve personally, courts make different methods available depending on the case type. These methods fall into what is categorically known as alternative service of process.

What are Options for Alternative Service of Process?

The methods available to deliver legal documents once alternative service has been approved vary from state to state. Common forms of alternate service include:

• Mailing service
• Posting documents to a location
• Publishing the notification in a public forum, such as a newspaper or court website.

Requesting Alternative Service of Process

If a state allows alternative service of process, there are often specific requirements that must be met during the prior attempts at service. These standards vary but generally focus on diligence — the number of qualified attempts made at an address without the successful delivery of documents. The number of attempts and what sets those standards vary by state, case type and even jurisdiction. It is important to get specific and delve into what validates the initial attempts at a court level, to ensure that service is completely compliant and cannot be invalidated. Improper or invalid service of process can lead to a case dismissal, either ending the case permanently or necessitating that the legal process begins again.

In some states, alternative service may require the approval of a judge. Texas, for example, requires a formal motion for alternative service or substitute service. Plaintiff attorneys must provide validation of the accuracy of a defendant’s address and demonstrate that proper attempts were made in accordance with the Texas Rules of Civil Procedure before the judge will grant approval. 

An additional consideration for plaintiffs and their attorneys is the effect of alternative service on timelines. Often, the documents that need delivery contain important dates, such as hearing or respond-by dates. When a process to validate an address or move for alternative service takes too long or the timeline for delivering the documents is tight, additional paperwork or motions are necessary to alter the legal timeline. Another consideration is that in certain circumstances, the use of alternative service will increase the time a defendant has to respond to a summons. 

Perfecting Alternative Service

The process does not end upon meeting the diligence requirements or getting a judge's approval to use alternative service methods to deliver a document. There are still requirements around the alternate service methods that the person delivering, publishing, posting, or mailing the documents must meet. Some states will not allow documents to be considered officially served until the alternative service method is complete and a copy of the documents is mailed to the best-known address for the defendant. Often, those mailings must be through certified mail and offset the official delivery date for documents.

To finalize the process, affidavits or declarations of service, documents that lay out how the service was completed must be completed. In these documents, the party performing service of process attests to the perfection of alternative service, how service was performed as laid out by the applicable court's regulations.

With this overview, you should feel more confident in your understanding of alternative service. Ultimately, alternative service of process is a method for delivering documents that cannot be served in an ideal way - personally. It becomes important for legal professionals to ensure that they abide by applicable court regulations around qualifying for and perfecting service - while keeping an eye on how this affects the legal timelines. 

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About ABC Legal

With more than 2,000 process servers across the U.S. and 75 countries, ABC Legal is the nation’s leading service of process and court filing provider, as well as the Acting Central Authority to the U.S. Department of Justice. Our digital approach saves valuable time and resources, and our cloud-based solutions are compatible for use on desktop, browser, and smartphones. Docketly — an ABC Legal subsidiary — provides appearance counsel on a digital, custom-built platform that smoothly integrates with our applications and services. Learn more at www.abclegal.com.