PROCESS SERVER TRAINING JACKSONVILLE SHERIFF S OFFICE

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1 PROCESS SERVER TRAINING JACKSONVILLE SHERIFF S OFFICE

2 SERVICE OF PROCESS IN GENERAL Per Florida Statutes, summons, subpoenas, and other process in civil actions run throughout the state of Florida and all process with the exception of subpoenas shall be directed to all and singular the Sheriffs of the state, special process servers and or certified process servers. The primary purpose of the service of process is to give a defendant notice that a legal proceeding has been instituted against him/her and to afford him/her the opportunity to defend against it. The civil process advises the court of jurisdiction, the parties involved, the nature of the action and general instructions to the defendant as to an answer. The role of the process server is very important, because the court does not have jurisdiction over the matter until the defendant has been notified. This affords individuals their constitutional right to due process. In some cases, civil actions are jeopardized because the lack of a diligent effort to make service, an illegal or improper service, or an improper return of service. All of these factors reflect on the ability and knowledge of the process server to properly perform his/her duties as prescribed by law. 2

3 Process may only be served by the Sheriff or a sworn deputy. The following enforceable process represents examples of judicial process that must be served by the appropriate authority for the court to obtain jurisdiction and may require PHYSICAL ACTION by the Sheriff or deputy sheriffs: EXAMPLES: ENFORCEABLE Child Custody Order Writs of Attachment for Support, personal property, real property, and Child Support Writ of Habeas Corpus, Writ of Possession, Writ of Ejectment, Writ of Replevin, and Writ of Execution Distress Lien Injunction for Domestic Violence/Repeat Violence/Sexual/Date 3

4 NON-ENFORCABLE The following non-enforceable process represents examples of judicial process that must be served by the appropriate authority for the court to obtain jurisdiction but requires NO PHYSICAL ACTION by the sheriff, deputy sheriffs, or special process servers: Summons Eviction Summons Cross-claim Summons Third Party Summons Writ of Garnishment Distress Writ Subpoenas Orders to Show Cause Notices Restraining Order Injunction (Not Domestic Violence)/Repeat/Sexual/Date 4

5 Civil process may be served on holidays, unless the legal holiday falls on Sunday.. Process CANNOT be served on Sunday. (48.20, Florida Statutes) However, this statute does provide an exception, if so stated in the body of the writ or in a Directed Court Order by a judge. 5

6 WHO CAN SERVE PROCESS? Sheriff (1) (a) (b) Deputy Sheriff (30.07) process cannot be served by local police, highway patrol, etc. Special Process Server (2) (3) and (4) appointed by sheriff Certified Process Server (48.27) appointed by judge YOU DO NOT WORK FOR THE SHERIFF YOU ARE NOT WITH THE SHERIFF S OFFICE YOU ARE APPOINTED BY THE SHERIFF S OFFICE 6

7 SPECIAL PROCESS SERVER CRITERIA 18 years old or older No mental or legal disability Permanent resident of the state (2) (b) Submit to a background investigation Obtain a certificate of good conduct Examination Take an oath Special Process Servers are appointed at the discretion of the Sheriff. The Sheriff may prescribe additional rules and shall have the discretion to revoke an appointment at anytime, if determined the process server is not fully and properly discharging his/her duties Special Process Servers that are appointed by the Duval County Sheriff shall only be authorized to service process in Duval County under his/her appointment 7

8 SERVICE OF PROCESS Process servers appointed by Duval County may serve process for the court system of Florida: * Florida Supreme Court * District Courts of Appeal * Circuit and County Courts * Foreign non-enforceable process (out of state) A process server appointed by the Sheriff of Duval County cannot serve federal process pursuant to their appointment. The Jacksonville Sheriff s Office elects not to serve Federal Process and directs all parties to the U.S. Marshall s Office for service. 8

9 THE REQUESTING PARTY MUST FURNISH THE SHERIFF OR PROCESS SERVER WITH THE FOLLOWING: (3) 1. The original writ or certified copy of the original or an electronic copy of the process, which was signed and certified by the Clerk of the Court. Original is defined as sent document with an original signature and court seal. 2. Sufficient copies for service with sufficient copies of appropriate attachments such as complaint, motion, petition or exhibits. 3. Best address where parties to be served can be found 4. Reasonable fee for service of process (Sheriff s fees are statutory). 9

10 UNDERSTAND THE FOLLOWING BASIC RULES: Know the method of proper service, types of legal service, and if there is a return date or appearance date Service is to be made during reasonable hours Determine the identity of the party to be served Identify yourself to the party to be served; always display your badge and if asked provide your name and identification to the requesting party If substitute service, explain the contents Document your attempts to make service by date, time and location and on whom served YOU ARE REQUIRED TO USE A FIELD(WORK)SHEET TO DOCUMENT YOUR ATTEMPTS & SERVICE Make a legal and complete affidavit of service to the court of issuance 10

11 The copy served should be stamped TRUE COPY. F. S (5) Requires the following: A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process. 11

12 THE PROCESS SERVER SHOULD NEVER Argue or discuss the merits of the case Offer legal advice under any circumstances Recommend an attorney to the party to be served 12

13 DUE DILIGENCE (3) Failure to perfect service at the best address provided does not excuse the Sheriff (server) from his or her duty to exercise due diligence in locating the person in Duval County. 13

14 1. Thoroughly exhaust the address provided by the requesting party 2. Check the address different times of the day and different days of the week 3. Research all city and county directories available 4. Submit a postal request form to the USPS requesting a forwarding address 5. Check with neighbors EXAMPLES OF DUE DILIGENCE Experience has shown that it is good policy to establish procedures to follow due diligence in locating persons named in the judicial process. The following is a checklist that should be used to ensure a diligent search has been completed: 6. Check in-house computer systems to determine if there have been previous service attempts 7. Call the requesting party 14

15 THERE ARE FIVE (5) LEGAL METHODS OF SERVICE OF PROCESS: 1. PERSONAL (1) Delivering process to the person named in the body of the writ 2. SUBSTITUTE (1) At defendant s usual place of abode Serving the spouse (2) (a) Serving the manager when an individual is d/b/a a sole proprietor (2) (b) Partnership (1) Delivery to designated supervisory or administratively designated employee at witness place of employment (4) (a) Any employee or registered agent at corporation s principle place of business (3) (a) Substitution for a registered agent, officer, director of a corporation if the address provided is residence or private mailbox For a person to be served with the only address being a private mailbox, service may be made on the person in charge of the private mailbox (6) 3. REPRESENTATIVE CAPACITY Serving a person in their official capacity. Substitute service is not permitted. 4. POSTING (3) (b), , 83.22, (2) (c), and CAN ONLY BE MADE IF AUTHORIZED BY STATUTE. 5. NON-SERVICE (3) 15

16 THE FOLLOWING ELEMENTS ARE REQUIRED FOR SERVICE: (1) Personal Service Is made by delivering process to the person named in the body of the writ anywhere within Duval County The person being served is NOT required to physically accept the process If the party refuses to accept service of process, nothing prohibits the server from dropping the process on the ground or floor at the feet of the person to be served Be sure to make the notation on the affidavit of service NOTE: The person being served must be physically seen 16

17 SERVICE AT WORKPLACE Section (1) (b), Florida Statutes, states that: employers, when contacted by an individual authorized to make service of process, shall permit the authorized individual to make service on employees in a private area designated by the employer. However, there is no penalty provided if the employer refuses. 17

18 SUBSTITUTE SERVICE FOR AN INDIVIDUAL (1) Is generally allowed if the following requirements are met: Service is made at the usual place of abode (where the party named for service is presently residing) Service is made on a person residing therein with the party to be served (Person served does not have to be a family member) Do not serve a visitor Service is made on a person 15 years of age or older some teenagers appear older than they actually are. When in doubt verify the age Server making service informs the party served as to the contents of the process. The server does not have to read the process and attachments in their entirety, but the process server must explain the contents and so state in the affidavit of service 18

19 SPOUSAL SUBSTITUTE SERVICE (2)(a) Service on a spouse may be made anywhere in the County: If the cause of action is not an adversary proceeding They reside together in the same dwelling The spouse requests such service This spousal service Cannot be forced upon the spouse, Nor Dropped on the spouse unless the service is made on the spouse at the defendant's usual place of abode 19

20 SUBSTITUTE SERVICE AT A PRIVATE MAILBOX (6) Is permissible if the address is the only address for the party to be served discoverable through public records The process server determines the person to be served maintains an active mailbox at that location The process server may leave a copy of the process with the person in charge of the mailbox. Drop serve if they refuse 20

21 SOLE PROPRIETOR (1)(b) Serving a Person in Charge when the individual to be served is doing business as (d/b/a) a sole proprietor. After two (2) or more attempts have been made to serve the owner (proprietor) at the place of business, you may serve the person in charge of the business at the time of service. There is no time requirement between attempts. This does NOT prohibit the process server from making an individual/personal service on the proprietor anywhere in Duval County or another appropriate legal form of substitute service. 21

22 PARTNERSHIP Service on any partner is valid against all partners and binds the partnership assets However, in order to bind a partner as an individual, you MUST serve each individual partner one for all, all for one Also, a partnership may designate an employee to accept service for the partnership Also, after an attempt on a partner or the designated employee, service can be made on a person in charge at the business during regular working hours 22

23 DOMESTIC LIMITED PARTNERSHIP (2) May be served on: Any general partner The agent specified in its certificate of limited partnership In the absence of a partner or agent, service may be effected upon the Secretary of State 23

24 FOREIGN LIMITED PARTNERSHIP (3) May be served on any general partner found in the state or any agent for service of process If a general partner cannot be found in this state and an agent for service of process has not been appointed or authority has been revoked or cannot be found or served with the exercise of due diligence, service may be effected upon the Secretary of State as agent of the limited partnership 24

25 CORPORATE SERVICE Service may be made by serving the highest ranking officer as set forth in the statute available for service in the absence of any higher statutory officer, beginning with: President, Vice President, Cashier, Treasurer, Secretary, General Manager, Director, or any officer or business agent residing in the state. Must state this in the affidavit of service. If the address provided for the registered agent, officer, director or principle place of business is a residence or private mailbox, service on the corporation may be made by serving the registered agent, officer, or director per (personal, substitute, etc.). If a foreign corporation has none of the foregoing officers or agents in this state; service may be made on ANY agent transacting business and residing in the state. 25

26 REGISTERED AGENT Every Florida corporation and every foreign corporation qualifying to transact business in this state shall designate a registered agent in accordance with Section ( The corporation SHALL keep a sign posted in the office in some conspicuous place designating the name of the corporation and the name of its registered agent on whom process may be served. The registered agent is required to be available for service Mon-Fri except holidays from 10:00 am until 12:00 noon and shall keep one or more registered agents on whom process may be served at the office during those hours (1). IF service cannot be made on a registered agent because of failure to comply with Section , then service shall be permitted on any employee of the registered agent or any employee at the corporation s principle place of business during the 1 st attempt at service even if the registered agent is temporarily absent from his/her office. The return of service must show the necessity of the substitute service. (Saridis v. St. Lucie Association, Inc. 804 So.2 nd 372 (Fla 4 th DCA 2001) 26

27 SERVICE ON A PROFESSIONAL ASSOCIATION (PA) & 12 Service is made in the same manner as on a corporation (48.081) or on the registered agent (48.091) 27

28 SERVICE ON LIMITED LIABILITY COMPANY (LLC) (1)(a)&(b) Service is made in the same manner as partnerships or by their registered agent. 28

29 DISSOLVED CORPORATION Process against the directors of any corporation which was dissolved prior to 7/1/90, as trustees of the dissolved corporation shall be served on one or more of the directors of the dissolved corporation as trustees. Process service against any other dissolved corporation shall be served in accordance with Section

30 MINOR SERVICE Process against a minor who has never been married shall be served: By serving a parent or By serving the legal guardian, if the guardian is named however If the minor has been married, serve the minor the same as an adult. 30

31 INCOMPETENT Service is made by serving two (2) copies of the process on the person who has care and custody of the incompetent or if there is a legal guardian, by serving the legal guardian. ***NOTE*** Section (1), F.S., requires service and reading to the incapacitated person. PRISONER SERVICE Process against a state prisoner shall be served on the prisoner. STATE ATTORNEY SERVICE Process shall be served on the State Attorney or an Assistant State Attorney ; DO NOT serve his/her legal assistant, secretary, etc. 31

32 PUBLIC AGENCIES AND OFFICERS Service shall be made on the governing board, council or commission s head or vice head. In the absence of the head or vice head, service can be made on any member. LABOR UNION Service shall be made on the President, officer, business agent, manager, or person in charge of the business of such labor organization. SERVICE FOR POSSESSION OF RESIDENCE Service can be made as individual, substitute, or posting, if two (2) attempts Have been made to make service not less than six (6) hours between attempts. 32

33 SUBPOENA CIVIL SUBPOENAS May be served by any person who is not a party to the suit Must be 18 years old Must make an notarized affidavit to the court of issuance As of July 1, 2009, criminal witness subpoenas can only be served by the Sheriff, Sheriff s Deputy, Appointed Process Server or Certified Process Server 33

34 WITNESS SUBPOENAS The service of process of witness subpoenas, whether in criminal cases or civil actions, is to be made as provided in Section (1) Service of a subpoena on a witness in a criminal traffic case, a misdemeanor case, a second degree or third degree felony may be made by United States mail directed to the witness as the last known address and such service must be mailed at least seven (7) days prior to the date of the witness required appearance (3) (a) CRIMINAL WITNESS SUBPOENA UPON AN INDIVIDUAL (3) (b) May be posted at the persons residence after three (3) attempts have been made to serve. The attempts must be made day or night and on different dates and times and such service must be posted at least five (5) days prior to the date of the witness required appearance. 34

35 CRIMINAL WITNESS SUBPOENA UPON A LAW ENFORCEMENT OFFICER (4) (a) (b) Service of a Criminal witness subpoena upon a LEO or upon any Federal, State or Municipal employee called to testify in an official capacity in a criminal case may be made in Section (1) (personal service) By delivery to a DESIGNATED supervisory or administrative employee at the witness place of employment. If the agency head or highest ranking official at the witness place of employment has designated such employee to accept such service. HOWEVER So such designated employee is NOT REQUIRED to accept service: For a witness who is no longer employed by the agency at that place of employment. If the witness is NOT scheduled to work PRIOR to the date the witness is required to appear. If the appearance date is less than 5 days from the date of service. Also, the agency head or highest ranking official at the witness place of employment MAY determine the days of the week and the hours of the day that service may be made. 35

36 SERVICE ON AGENT OF NONRESIDENTS DOING BUSINESS IN THE STATE When any natural person or partnership not residing or having a principal place of business in this state engages in business in this state, process may be served on the person who is in charge of any business in which the defendant is engaged within this state at the time of service, including agents soliciting orders for goods, wares, merchandise or services. SERVICE ON INSURANCE COMPANIES (3) & Insurance Companies cannot be served. Service of process on insurance companies is accomplished by service upon the Service of Process Section, Department of Financial Services, Chief Financial Officer or upon his/her assistant as process agent of an insurer. 36

37 WHEN SERVING INSURANCE COMPANIES, YOU MUST PROVIDE THE FOLLOWING: Original summons plus one copy Two copies of all other documents to be served A $15.00 check payable to Department of Financial Services or Chief Financial Officer Make sure that the Plaintiff/Plaintiff s Agent s name and address are correct and clearly printed on the summons or subpoena. The proof of service will be returned to that name and address. A SASE will expedite the return of service The process may be delivered by personal service OR MAIL per The mailing address is: Name of Insurance Company c/o Florida Chief Financial Officer as RA 200 East Gaines Street Tallahassee, Fl OR Name of Insurance Company c/o Florida Chief Financial Officer as RA Service of Process Section P. O. Box 6200 Tallahassee, Fl Note: Service on an insurance company for the production of records (company is not a party to the legal matter) may be effected if the company will accept the service, otherwise, the procedures above will be followed. 37

38 SERVICE ON A SCHOOL BOARD Shall be made on the Chair of the school board, or if he or she cannot be found, on the Superintendent as Executive Officer of the school board, or in the absence of the Chair and the Superintendent, on another member of the school board 38

39 RETURN OF AFFIDAVIT TO THE COURT The Court must have jurisdiction over the parties involved in the civil process to insure the party being served has his or her day in Court, which is referred to as due process. Generally, the judge hearing the case first reviews the court file to ascertain if there has been proper service of process. Therefore, a process server s affidavit of service must be in the court file before the hearing date. All initial pleadings delivered and served along with the process must be listed on the Return of Service. 39

40 NON-SERVICE (3) If the person CANNOT be found in Duval County, the server is required to exercise due diligence in locating the person to be served 40

41 THE AFFIDAVIT OF SERVICE MUST CONTAIN THE FOLLOWING INFORMATION Time and date process was received by serving party Time and date process was served to party named Method of service on the party named Name of the person on whom it was served Title of person served, if party served is made in a representative capacity If an unknown is served you must identify him/her and state in the return A failure to state all the facts in a return shall subject the person effecting the return to a fine not exceeding $10.00, in the courts discretion. THE PERSON SIGNING THE RETURN (AFFIDAVIT) IS RESPONSIBLE FOR THE CONTENTS NOT THE CLERK PREPARING THE RETURN. 41

42 THE CAPTION ON A PROCESS SERVER S AFFIDAVIT OF SERVICE MUST INCLUDE: CONTROL OR RECEIPT NUMBER STYLE OF CASE CASE NUMBER COURT AND COUNTY OF ISSUE COURT RETURN DATE TYPE OF WRIT AND ALL ATTACHMENTS, IF ANY ATTORNEY OR REQUESTING PARTY FOR SERVICE NAME OF PARTY TO BE SERVED EXAMPLE Receipt No B ABC Tire Co. vs. John Smith Case No CC SUMMONS with Complaint DUVAL COUNTY COURT 20 DAY RETURN Service at the request of: To Be Served: Smith, Smith, Smyth, and Jones John Smith 2468 Main St S. Smythfield Dr. Jacksonville, Fl Jacksonville, FL

43 THE CLOSURE ON A SPECIAL PROCESS SERVER S AFFIDAVIT OF SERVICE MUST INCLUDE: TYPE SERVICE AND HOW IT WAS PERFECTED-MUST NAME PERSON SERVED COUNTY OR JURISDICTION WHERE SERVICE WAS MADE SHERIFF S NAME (If served by a Deputy Sheriff) PROCESS SERVER S NAME PROCESS SERVER S BUSINESS ADDRESS PROCESS SERVER S AUTHORIZATION (SECTION (2) (A) (3) (4), FLORIDA STATUTES) PROCESS SERVER S IDENTIFICATION NUMBER PROCESS SERVER S SIGNATURE NOTE: ELECTRONIC OR RUBBER STAMPED SIGNATURES ARE NOT ACCEPTABLE A SHERIFF S SERIALIZED SEAL MUST BE AFFIXED TO EACH RETURN OF SERVICE RETURN TO THE DUVAL COUNTY COURT NON-SERVED RETURNS ARE EXEMPT Type Service: EXAMPLE Individual - Received the above named writ on September 1, 2007 at 10:30 am and served the same at 2:00 pm September 1, 2007 in Duval County Florida by delivering a true copy of this writ together with a copy of the initial pleading, if any, with the date and hour of service endorsed thereon by me to John Smith. COUNTY: Duval Billy Bob Dumphery # S. Willy St. Jacksonville, Fl Appointed Per (2) (A) (3) (4) F. S. 43

44 NOTE IF SERVICE IS MADE THAT IS NOT PURSUANT TO FLORIDA STATUTES BUT AS DIRECTED BY AN ATTORNEY OR OTHER OFFICER OF THE COURT, BE SURE TO SPECIFICALLY AND TRUTHFULLY EXPLAIN IN YOUR RETURN HOW THE SERVICE WAS MADE. THE METHOD OF SERVICE WILL BE OTHER. 44

45 AMENDED RETURN When a server finds that his/her return of service was incorrect or not stated in a truthful manner, an amended affidavit of service should be prepared as soon as possible and filed with the court correcting the original return of service. 45

46 BANKRUPTCY If the defendant has an active bankruptcy, STOP! Unless you have an injunction. AS OF OCTOBER 17, 2005, A BANKRUPTCY WILL NOT STOP: Divorce proceedings Legal actions involving child support (child support summons) Drivers license suspensions Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 GATED COMMUNITIES As of July 1, 2011, FSS was amended granting authorized process servers unannounced access to specified residential areas (gated communities) where a defendant or witness resides or is known to be. 46

47 SUMMARY We have just covered service of process in general and it is important to remember that: You do not serve process on Sunday without a court order signed by a judge or statutory authority Do not refuse to serve process unless you have a legal reason Do not let the party to be served or the party you are serving for determine if you will or how you will make service Do not use force to serve non-enforceable process unless you have a legal right to do so Do not make a false return QUESTIONS?? 47

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