Eleanor Finch
A subpoena is a powerful tool that allows attorneys to compel a person to produce documents or appear for a deposition or court proceeding. While the Federal Rules of Civil Procedure specify the scope and reach of subpoenas, there is ambiguity regarding the interpretation of good service. This has resulted in varying court decisions and inconsistent practices among attorneys. Substituted service is one alternative mode of serving a subpoena that does not involve personal, in-hand delivery. It can be permitted by a court if personal service is not practicable or if the defendant is difficult to serve. Substituted service typically involves leaving the legal proceedings at a defendant's property, sending them via email or text, or serving them to an adult cohabitant. While substituted service provides flexibility, it is not granted as a matter of course and must be reasonably calculated to accomplish the delivery of the subpoena.
| Characteristics | Values |
|---|---|
| Personal service | The preferred method of service where the party physically hands the papers to the other party. |
| Substituted service | Can replace personal service when it is not required or difficult to execute. |
| Substituted service requirements | The server must attempt to deliver the papers at least 3 times, on different days and at different times. |
| Substituted service approval | A judge can allow substituted service if the server can show they made multiple attempts. |
| Substituted service methods | Leaving papers with an adult who lives with the defendant, an adult in charge of the defendant's home, or an agent of the recipient. |
| Subpoena service rules | Rule 45 imposes a 100-mile radius limitation for compliance, unless the person subpoenaed is a party or their officer. |
| Subpoena service in a foreign country | Governed by 28 U.S.C. §1783 for issuing and serving a subpoena to a US national or resident in a foreign country. |
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What You'll Learn
- Substituted service is allowed when personal service is not required
- Substituted service is allowed when the defendant is difficult to serve
- Substituted service is allowed when the defendant is not a party to the lawsuit
- Substituted service is allowed when the defendant is outside the subpoena's geographical limitation
- Substituted service is allowed when ordered by the court
Substituted service is allowed when personal service is not required
Substituted service is a method of serving legal proceedings that replaces personal service, which is the preferred method of service. Substituted service is allowed when personal service is not required, and it can be a useful tool to overcome service issues that may arise due to challenging circumstances or defendants.
Personal service involves the physical exchange of legal documents between the serving party and the recipient, also known as in-hand service. This method is typically required for serving subpoenas on non-parties. However, in some situations, personal service may not be feasible or reasonable.
Courts have acknowledged that a rigid requirement for personal service may not always align with the principle of securing a just, speedy, and inexpensive legal process. As a result, they have allowed for alternative modes of service, such as substituted service, when it can be reasonably calculated to accomplish the delivery of legal documents to the intended recipient.
Substituted service typically involves leaving the legal documents with an adult who resides or works with the intended recipient and then mailing a copy of the papers to the recipient's address. In some states, substituted service may also include leaving the documents at the recipient's usual place of business or sending them via email or text message.
It's important to note that substituted service is not granted as a matter of course. Courts will generally require evidence of multiple attempts at personal service before approving substituted service. This ensures that the proposed method of substituted service is likely to bring the legal proceedings to the attention of the recipient.
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Substituted service is allowed when the defendant is difficult to serve
Substituted service is a useful tool that can be employed when personal service is difficult or impractical. It is generally allowed when the defendant is hard to serve, and personal service has proven challenging or impossible. Substituted service is a method of serving legal proceedings without physically handing the papers to the defendant. This can be done by leaving the papers with an adult who lives with the defendant or by mailing a copy of the papers to their address.
In some states, like California, substituted service can be accomplished by leaving a copy of the summons at the person's "dwelling house, usual place of abode, or usual place of business." This method of service is also known as in-hand service, and it is the preferred method of service. However, when personal service is not required or is difficult to achieve, substituted service can be an effective alternative.
For example, if a server has made multiple attempts to deliver the papers to the defendant but has been unsuccessful, a judge may allow substituted service. Generally, the server must try to deliver the papers at least three times, on different days of the week and at different times of the day, including when the defendant is likely to be at home or work. Proper documentation of these attempts is crucial, as it may need to be presented as evidence when applying for substituted service.
Additionally, a court may order substituted service if it is not practicable to personally serve a party. This could include leaving a copy of the proceedings at the defendant's property, sending them via email or text, or mailing them to a PO box used by the defendant. Substituted service will not be allowed as a matter of course, and courts will consider if the proposed method will successfully bring the legal proceedings to the defendant's attention.
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Substituted service is allowed when the defendant is not a party to the lawsuit
Substituted service is a method of serving legal proceedings on a defendant without using personal service. Substituted service is allowed when the defendant is not a party to the lawsuit, and there is evidence that attempts to carry out personal service have been made. Personal service is typically the preferred method of serving legal proceedings, where the papers are physically handed to the defendant. However, in certain situations, such as when the defendant is difficult to locate or avoidant, substituted service can be a useful alternative.
According to Rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), if it is not practical to personally serve a party, the Court may order substituted service. This means that alternative steps can be taken to bring the legal documents to the defendant's attention. For example, leaving a copy of the proceedings at the defendant's property, sending them via email or text, or mailing them to an address or PO box used by the defendant.
In the United States, courts have interpreted that personal service of a subpoena is not always required. This interpretation is based on Federal Rule of Civil Procedure 1, which states that the rules should be employed to secure a just, speedy, and inexpensive determination of legal proceedings. As such, alternative modes of service, such as sending subpoenas via FedEx or certified mail, may be deemed acceptable by courts.
It is important to note that substituted service is not granted as a matter of course. The applicant must provide evidence that attempts to personally serve the defendant were made. Generally, multiple attempts to deliver the papers at different times and days of the week are expected. If the defendant is never at home or work, and someone else is present who can take the papers, the server may be allowed to hand the papers to that person instead. This person must be an adult who lives with or seems to be in charge at the defendant's residence.
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Substituted service is allowed when the defendant is outside the subpoena's geographical limitation
Substituted service is a method of serving a subpoena that does not require personal, physical delivery. Substituted service is allowed when the defendant is outside the subpoena's geographical limitation, which is typically within a 100-mile radius of where the person resides, is employed, or regularly conducts business. This limitation is outlined in Federal Rule of Civil Procedure 45, which governs the issuance of subpoenas.
The rule provides flexibility for subpoenas seeking testimony, allowing compliance to occur within 100 miles of the person's residence or place of business, or within the same state. For subpoenas seeking document production, the geographical scope is restricted to within 100 miles of the person's residence, employment, or business transactions.
When considering substituted service, it's important to note that courts have interpreted "good service" inconsistently due to the ambiguity in Rule 45. This has led risk-averse attorneys to favor personal service to avoid potential issues with improper service. However, courts have also recognized that alternative modes of service can be reasonable and effective, such as sending subpoenas via FedEx or certified mail, especially when considering the goal of a "just, speedy, and inexpensive determination of the action."
While substituted service can be utilized when the defendant is outside the geographical limitations, it is crucial to consult the specific rules and practices of the relevant jurisdiction, as they may vary. Additionally, while a subpoena can generally be served anywhere within the United States, it is essential to be mindful of potential challenges to a subpoena, such as unreasonable time constraints, disclosure of protected material, or undue burden.
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Substituted service is allowed when ordered by the court
Substituted service is a method of serving legal proceedings without using personal service. Substituted service is allowed when ordered by the court, and it can be a useful tool to overcome service issues that may arise with a difficult defendant.
Personal service is the preferred method of serving legal proceedings, where the party physically hands the papers to the other party. This method is also known as in-hand service. Substituted service, on the other hand, can be used in situations where personal service is not required. For example, in some states like California, plaintiffs can substitute personal service by leaving a copy of the summons at the person's dwelling house, usual place of abode, or usual place of business.
To apply for substituted service, one must demonstrate that attempts to carry out personal service have been made. These attempts should be well-documented, as they may need to be presented as evidence if a substituted service application is required. Generally, the server must attempt to deliver the papers at least three times, on different days of the week and at different times of the day.
If the server has made multiple attempts to deliver the papers to the defendant but has been unsuccessful, a court may order substituted service. Rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) states that if it is not practical to personally serve a party, the court may specify alternative steps to bring the document to the notice of the person concerned. For example, a court may order that substituted service be carried out by leaving a copy of the proceedings at the defendant's property or sending a copy to the defendant's email or postal address.
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Frequently asked questions
Substituted service is a method of delivering legal proceedings to a defendant without using personal service. Substituted service is typically used when personal service is not a viable option.
Substituted service can be used when a party has made several attempts to deliver papers to the defendant but they are not contactable. Substituted service can also be used when serving a subpoena to a non-party.
Substituted service can be carried out by leaving a copy of the proceedings at a defendant's property, sending a copy to the defendant by email, text, or post, or by serving papers to another adult who resides with the defendant.
