Should You Serve a Small Claims Defendant Yourself? - dummies

Should You Serve a Small Claims Defendant Yourself?

By Judge Philip Straniere

Serving the defendant yourself of a small claims suit is a bad idea on several levels, including the fact that it usually isn’t permitted in small claims or other courts. This is because you have a vested interest in saying the defendant was served. If the defendant is served and doesn’t show up to court, you can get a default judgment by swearing you complied with the rules for service.

You are not reliable in this case, from the court’s point of view. It would be very tempting for you to say you served the defendant even if you did not in order to obtain a judgment. That’s why it’s better to get a disinterested person to serve the process — a licensed process server or a public official such as the sheriff or the marshal.

You can ask a friend to serve the process, but the danger of this is that your friend won’t follow the rules for proper service. If the complaint isn’t served properly, you don’t have personal jurisdiction over the defendant and you can’t get a valid enforceable judgment.

Or, your friend may serve the process properly but then forget to fill out the affidavit of service, which has to be filed with the court to prove the complaint was delivered. This may require a special separate hearing called a traverse hearing if the defendant claims no service was made.

In a traverse hearing, the defendant appears in court and claims that she was never served at all or wasn’t served in the manner set out in the statute for service of process.

The burden then shifts to you to prove your process server complied with the law. The process server must appear and testify as to how she accomplished service.

A traverse hearing can be held before your trial or after your trial if the defendant learns of the lawsuit when you go to enforce your default judgment.

In many courts, the clerk will reject the affidavit outright if it isn’t completed properly. If this happens, you usually can correct the defects before the case is on the court calendar.

If the defect is found after the fact, in the best-case scenario, you’ll have to have a traverse hearing and establish that the documents were properly delivered. At which point the fact that the person serving the papers filed a false affidavit, even unwittingly, can be used to attack her credibility.

In the worst case scenario, your case will be dismissed for lack of proper service, meaning you have to start over again, and if you waited a long time to bring the case initially, you may have statute of limitations problems.

So if you have to do something other than mail service, hire a professional process server, or better still use the marshal or sheriff if that is the procedure in your state.