You’ve been served: Form of process and Service of process Basics.

May 27th, 2021 - Lisa M. Keeler

A key step in perfecting a lawsuit is serving the defendants. Failing to serve timely or serving the wrong documents or the wrong person could lead to dismissal of a case.

One of the most basic, and often confusing, aspects of service is understanding the difference between form of process and service of process. Form of process refers to the documents and the contents of the documents to be served, especially the Summons. Service of process refers to the manner or method of serving the documents including timing.

Form of Process

The documents that must be served in most cases are the Complaint and the Summons. The Complaint (in some types of cases the Petition) lays out the claims of the plaintiff (or petitioner) identifying:  the parties, the basis for the court’s jurisdiction, the basic facts, the legal causes of action/claims (e.g. negligence or breach of contract), and the relief sought (e.g. damages or specific performance of a contractual act). The Summons lets the defendant know they must appear in the case to challenge it, what deadline they must meet to do that and Answer the Complaint, and the consequences if they don’t (a default judgment).

There is exact Summons language that must be used in most cases for personal service on defendants that can be found within Washington State. (CR 4(b)(2).) The language is altered slightly for out-of-state personal service. (RCW 4.28. 180; CR 4(e).) And the language is again different when the defendants cannot be found and service by publication is allowed. (RCW 4.28.110.) Generally, defendants have 20 days to Answer if personally served in the state (CR 4(b)(a)(2)) and they have 60 days to Answer if personally served outside the state or by publication (RCW 4.28.180; RCW 4.28.110).

Timing of Service of Process

If the Complaint is filed before serving the defendants, then the plaintiff must serve one or more defendants or start publication within 90 days of filing. (RCW 4.16.170.) If service is not timely, a case could be dismissed. (See CR 12(b)(5).) If the lawsuit was filed right before the statute of limitations (the deadline to file the claim), that deadline is tolled during those 90 days. So, if service is not timely and the statute of limitations runs, the case could be dismissed and not allowed to be refiled. (RCW 4.16.170.) There are other laws allowing tolling of the applicable statute of limitations. (RCW 4.16.180-.230.)

Manner of Service of Process

The manner of service refers to who serves whom and how. Personal service can be made by the sheriff or the sheriff’s deputy or any person over 18 years of age who is competent to be a witness, other than a party. (CR 4(c).) There are many different ways to serve defendants depending on who and where they are:  are they an individual or a corporation? can they be found in Washington State, in the United States or in another country? (See RCW 4.28.020-.110, .180-.185.)  Service can be made on an individual defendant personally, or by leaving a copy at their usual abode with some person of suitable age and discretion who resides there. (RCW 4.28.080(16).) If the defendant is not an individual person (such as a corporation), there are specific directions on who to serve (such as the president of a corporation). (RCW 4.28.080.) If personal service needs to be made outside Washington State, the plaintiff must file an affidavit explaining this. (RCW 4.28.185(4).) And, there are requirements on how to properly perform service by publication (such as made in a newspaper of general circulation each week for six consecutive weeks). (RCW 4.28.110.)

There may be other documents that need to be served or special requirements in certain cases. So, if you’ve been served – or need to serve someone – you should speak with an attorney about what the documents mean and your options.

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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