Serving Defendants

I often meet with individuals who are shocked because they recently found out that a lawsuit had been filed against them months or even years earlier. They came to find out about the action after the plaintiff obtained a final judgment and was attempting to collect on the judgment. There are laws in place that govern how process is to be served to prevent situations like the one I just described from occurring. But, these laws do not often result in the defendant receiving actual notice of the litigation. Process provides a defendant with adequate notice that is reasonably calculated to let interested parties know about the existence of a court case and give them an opportunity to defend it by presenting their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982); Springbrook Commons, Ltd. v. Brown, 761 So. 2d 1192, 1194 (Fla. Dist. Ct. App. 2000).

Service of process occurs when the defendant in an action is delivered a copy of the petition, complaint or other initial paper or initial pleading. Fla. Stat. Ann. § 48.031 (West). The best way of providing notice to the defendant is by serving the defendant personally. Springbrook Commons, Ltd. v. Brown, 761 So. 2d 1192, 1194 (Fla. Dist. Ct. App. 2000). However, this is not always possible because defendants are sometimes hard to locate. But, just because the plaintiff is unable to serve the defendant personally does not mean that the case will not proceed. Florida Statutes Chapter 48 lists various additional mechanisms available to a Plaintiff to who is trying to serve you.

1. They can leave copies with a person who lives with you and is at least fifteen years old and whom they inform of the contents.
2. The process server can contact your employer and your employer must let the process server serve you in a private area that your employer designates. Should your employer refuse to comply he may be subject to a noncriminal violation punishable by a fine.
3. They can serve your spouse so long as a) the cause of action isn’t an adversary proceeding that is between you and your spouse, b) your spouse lives with you and c) your spouse requests that they do so. They do not have to serve your spouse at your house. They can actually serve your spouse anywhere in the county.
4. If you are doing business as a sole proprietor they can try and serve you directly at your place of business. However, after two unsuccessful attempts at trying to serve you at your place of business, they can then serve you via substitute service by serving the person in charge at the business at the time they come to serve process.

This is not an exhaustive list. The Florida Statutes provide various other mechanisms available to a Plaintiff. One of these includes Service by Publication, also known as Constructive Service of Process. Service by publication is only proper if a) the plaintiff was unable to accomplish personal service and b) it is one of the kinds of cases that are listed in the statute that authorizes constructive service by publication. Giron v. Ugly Mortg., Inc., 935 So.2d 580 (2006). The statute that authorizes constructive service of process by publication is Florida Statutes chapter 49. It states that in the case where a defendant is a natural person, the Plaintiff must provide a sworn statement that shows, amongst other things, that the Plaintiff conducted a diligent search to try and find the defendant’s name and residence. Fla. Stats. § 49.041. After complying with this requirement and the various other requirements outlined in Chapter 49, the plaintiff can file the sworn statement with the court and can have the clerk or judge issue a notice of action that states the names of the defendants, the type of case or proceeding that it is, the title of the case, the name of the court and the description of the real property that is the subject of the proceeding, amongst other things. Fla. Stat. § 49.08. The plaintiff shall then publish the notice of action in a newspaper that is published in the same county as the court. Fla Stat. 49.10. The plaintiff may have to publish the notice once a week for two consecutive weeks or once a week for four consecutive weeks depending on the type of case. Section 10(c) of Florida Statutes Chapter 49 requires that notices of action in foreclosure cases be published once a week for two consecutive weeks.

If you are properly served by publication, you are presumed to have been given notice of the action pending against you. However, the bar for a plaintiff to be able to serve someone by publication is pretty high. For instance, if the plaintiff did not conduct a “diligent search” to try and locate you, service by publication is improper. Numerous cases lay out what does and does not constitute a diligent search. If you recently found out about a case in which you were never served or were served by publication, you should contact a competent litigation attorney immediately to defend your rights.

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