How to Give Notice of Your Small Claims Suit via Substituted Service - dummies

How to Give Notice of Your Small Claims Suit via Substituted Service

By Judge Philip Straniere

Substituted service is when the small claims pleadings cannot be hand-delivered to the named defendant but are delivered to a person of suitable age and discretion — generally held to be an individual over the age of 14.

This age requirement is only a presumption, which means that the defendant can later establish that the person really wasn’t a person of suitable age and discretion. Even though delivery is to someone other than the named defendant it’s still a form of personal service.

Someone over the age of 14 who doesn’t understand that the papers she’s receiving have legal implications will probably not be deemed a person of suitable age and discretion. Delivery to such a person is not valid service meaning you can’t get an enforceable judgment against the defendant because the notice requirements of the law haven’t been complied with.

Additionally, after leaving a copy with the adult, another copy of the summons and complaint has to be mailed to the defendant because actual personal delivery hasn’t been made to the named defendant.

The recipient can be a family member, a business associate, or any other person who would presumably deliver the document to the defendant. It can’t be a stranger or laborer temporarily at the site.

If the defendant lives in an apartment house with a doorperson and the doorperson refuses you entry to the building, service generally can be made on the doorperson. A similar rule applies at a business where a receptionist or security guard prohibits entry. If the rules of an apartment or office building prevent direct delivery of a pleading, the person preventing the delivery can be an acceptable substitute.

A few examples of valid and invalid substitution service:

  • You ask your friend to serve the complaint on your neighbor. Your friend, being a bit of a coward, sees the neighborhood kid delivering the free weekly coupon guide going to the defendant’s house and hands her the papers.

    That’s probably not going to be good service. There was no obligation for the coupon guide delivery girl to accept the papers initially on behalf of the defendant, nor was there any expectation she would re-deliver them to the defendant.

  • A process server sees a30-year-old, developmentally disabled person sitting on the porch and hands him the complaint. This person is non-verbal and can’t read or write. That service is not good. Although a person of suitable age, he lacks any discretion. But, as the defendant, you would have to prove this fact to the court.

  • The process server sees your ten-year-old daughter, who is a member of the genius group Mensa, on the porch and hands her the complaint. She looks at it and says, “Oh yes, I know what this is. It’s an important legal paper. I know because I’ve seen them in my mom’s law office. I’ll give it to my dad.”

    This is probably good service because the ten-year-old understands the legal implications of the document and knows to deliver it to the defendant parent.