SERVICE OF PROCESS

A civil action is commenced by filing a complaint with a court. But merely filing a complaint has little legal effect. In order to establish the court's jurisdiction over the defendant so that a judgment will be valid, one must obtain service of process on the defendant.

This service must be made on the defendant directly (or the defendant's agent) and not on the defendant's attorney. After a party has been properly joined through valid service, later pleadings are served upon the party's attorney rather than the party. (In fact, if a party is represented, opposing counsel is prohibited from communicating directly with the party about the case.⁽¹⁾)
 

Requirements for valid service of process

There are three requirements for valid service of process: 1) there must be formal compliance with the mechanics of service; 2) the state or government must have authorized its courts to exercise jurisdiction over the party (by constitution, statute, rule, or common law);⁽²⁾ and 3) the attempted exercise of jurisdiction must not violate due process.

Mississippi courts are authorized to exercise jurisdiction over persons found in Mississippi,⁽³⁾ Mississippi residents, corporations qualified to do business in Mississippi, and nonresidents who are subject to the state long-arm statutes.⁽⁴⁾ When the defendant cannot be found, jurisdiction is authorized over any property of the defendant.⁽⁵⁾
 

Due Process Limits

1. Due Process Requires Relationship of Defendant to Forum

Due process requires some relationship of the defendant to the forum state.

General jurisdiction. Due process permits courts to exercise personal jurisdiction over defendants for any claims in a few situations. These include individuals who are citizens of the state and corporations that are incorporated in the state, that have chosen the state as their principal place of business, or that are engaged in systematic and continuous business activity in the state. The Burnham case shows that four members of the Supreme Court were prepared to hold that in-hand service in the state also supports general jurisdiction over individuals; but four other members required minimum contacts. Lower courts have been reluctant to apply this kind of "tag" general jurisdiction to corporations whose agents have been served in state.

Specific jurisdiction. International Shoe holds that at least in actions in personam against nonresidents who are served constructively and who suffer default judgments, there must be minimum contacts between the defendant and the state so that the requiring the defendant to submit to the power of the statue courts does not offend traditional notions of fair play and substantial justice.

The fifth amendment limits the reach of federal courts while the fourteenth amendment limits state courts, and the fourteenth amendment indirectly also limits federal courts because the jurisdictional reach of federal courts is linked in most cases to the reach of the state courts in the state in which they sit. Fed. R. Civ. P. 4(k)(1)(A).

The rhetorical tests of minimum contacts and fair play and substantial justice are expanded and clarified in cases that require that the defendant engage in volitional activity directed towards the forum and that find that circumstances must make it reasonable for the defendant to have anticipated the state to exercise personal jurisdiction. Fairness specifically requires evaluation of four or five factors: the inconvenience to defendant, the plaintiff's need for jurisdiction to obtain complete relief, the forum's interest, the shared interests of states, and the needs of the interstate and international system.
 

2. Due Process Requires Adequate Notice

Mullane holds that due process also requires that the method of service be reasonably designed to apprize the defendant of the litigation and give the defendant an opportunity to defend. This requirement of notice does not mean that the defendant has to be actually informed or notified. Paradoxically, it also does not mean that when the defendant has been informed then the method of service satisfies due process.
 

Mechanics of service in Mississippi State Court

The mechanics for service in Mississippi state courts⁽⁶⁾ are similar to those in other states. First, the clerk, a court official, issues a summons (a short document under court seal ordering the defendant to appear and answer the complaint). Second, the summons and a copy of the complaint are served upon the defendant.

Service is made in different ways, depending on the kind of case and the kind of defendant who is being served. Often the plaintiff has options. General methods include:

1) first-class mail with acknowledgment-of-service form (this is what is called "waiver of service" in federal practice)

2) personal delivery

3) residence delivery (Mississippi requires leaving the papers at the defendant's usual place of abode with defendant's spouse or other family member over sixteen-years-old who is willing to receive service and mailing a copy of the papers to the defendant at the same place)

4) delivery to an agent or other person authorized to receive legal notice for the defendant

5) certified mail

6) publication
 

Who serves?

After the clerk issues the summons, it is either 1) given to the plaintiff (or plaintiff's attorney), 2) delivered to the sheriff, 3) delivered for publication by a newspaper, or 4) mailed to certain foreign national defendants.⁽⁷⁾
 

Service arranged by plaintiff or plaintiff's attorney

A plaintiff or plaintiff's attorney may arrange for process to be served in four different ways (depending on the kind of case). First, the plaintiff may mail the summons and complaint to the defendant with acknowledgment of receipt form. The defendant is not required to return the acknowledgement, but the rules provide that a defendant who fails to do so will be charged with the expenses incurred by the plaintiff in accomplishing subsequent personal service.⁽⁸⁾ Second, the plaintiff may arrange for personal service by a process server. Such a process server can be any nonparty over eighteen, and he or she must personally deliver the process to the defendant (or to agents or officers of a defendant business entity) or delivery it at the defendant's residence to a spouse or family member over sixteen who is willing to receive process (and mailing a copy to the defendant at the same address). Third, the plaintiff can serve process by certified mail. Fourth, the plaintiff can arrange for delivery of process to a newspaper for publication.
 

Upon whom?

Service by mail with acknowledgment of receipt may be sent to individuals (except unmarried infants or incompetent persons) and to officers, managing or general agents of business entities, or to any other agent authorized by law to receive process for those entities.

Personal service may be delivered to individuals other than unmarried infants and incompetents, to an agent authorized by law to receive such service, and to officers, managing or general agents of business entities. The rules also designate persons to whom service should be delivered in the cases of unmarried infants and incompetents, actions against the state, counties, and cities.

Service by certified mail is effective only on persons outside the state.⁽⁹⁾
 

Where?

A sheriff may serve process in his or her county.

Under the Mississippi rules, there are no territorial limits on where mailing with acknowledgement-of-service and personal delivery may be made, so such methods look like they may be used anywhere in the world. Nevertheless, under the Hague Convention, such service may be invalid. (For example, Japan does not allow personal service.)

Service by certified mail may occur anywhere in the U.S. except Mississippi. This is because the rule for service by certified mail applied only to out-of-state defendants (resident or nonresident), and since the U.S. postal service delivers certified mail only within the United States, the method is effectively limited to other states and federal territories.

Publication in a newspaper must occur for three successive weeks in the county in which the action has been commenced. If there is no newspaper in the county, publication must be made by posting notice a the courthouse and either publishing in an adjacent county [presumably within the state] or publishing in the state capital.
 

Proof of service

Service of process should be made a matter of court record by filing proof of service with the clerk. The rule provides, however, that failure to make proof of service does not invalidate service.
 

Time

Process must be served within 120 days after commencing the action unless "good cause" is shown for the failure to serve.
 

Methods are not exclusive

The rules provide that additional summonses be issued at the plaintiff's request and allow for amendment of service and proof of service. Methods of service are not exclusive in general, but residence service is authorized only when personal service cannot be made with reasonable diligence. If one method of service raises constitutional or other legal problems, the plaintiff may employ additional methods in order to secure the court's jurisdiction and to avoid unnecessary litigation.
 

II. Service in Federal Courts

Methods for service in federal court in Mississippi are similar to those available in the state courts. This is not accidental. There are two reasons for the similarity. First, the state rules are patterned after the federal rules, and most of the state methods track the federal methods. Second, the federal rules incorporate the state service rules for most kinds of cases.

There are some important differences. For example the federal rule provides for personal delivery to competent, adult, individual defendants "or by leaving copies...at the [defendant's] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein..." Fed. R. Civ. P. 4(d)(1). The state rule allows for residence service only if personal delivery is unsuccessful, and it places additional requirements on the mechanics of residence service.

In addition to methods provided by the federal rules, service may be made upon individuals (except minors and incompetents) and upon business entities pursuant to the state law either of the state where the cause of action is filed or pursuant to the law of the state where process is served. Fed. R. Civ. P. 4(e)(1)&(h)(1).

As in state court, the clerk of the federal court first issues a summons. Then the plaintiff must arrange for service of the summons and a copy of the complaint. Process will be served by a federal marshal only when the government is plaintiff or in a few other special cases.

Process can be served in the following ways.

1) process can be served (technically "waived") by mailing the summons and complaint and requesting "waiver of service." The defendant has a duty to avoid costs and is given an incentive to cooperate because the plaintiff may recover the costs of subsequent personal service (and the legal fees incurred in collecting them) and the defendant is given a longer period to answer the complaint when service is waived. There is a potential trap in that the language of the federal rules suggests than an unsuccessful attempt to obtain waiver of service requires that subsequent service must be made by personal or residence delivery.

2) process can be served by any method allowed by state court (for competent adult individuals and businesses as well as for actions in rem⁽¹⁰⁾)

3) personal delivery and residence delivery (within the U.S.)

4) in foreign countries by methods permitted by treaty or by the law of the foreign country

5) in special cases by additional methods specified by federal statute or rule.
 

Special methods for federal service exist, for example, in serving the government or in attaching a vessel in an action brought under the federal court's admiralty jurisdiction.
 

where?

Serving process does not guarantee valid jurisdiction. In cases arising under state law, the territorial reach of federal courts is limited to that of the Circuit Court in Mississippi, except that parties joined as third-party defendants may be served within 100 miles of the federal court.

Congress provides for nationwide service in certain cases (such as interpleader). Fed. R. 4(k).

In a federal question case where no federal court otherwise has personal jurisdiction, any federal court may exercise jurisdiction so long as it is not unconstitutional.
 

Proof of service; Time

Rules governing proof of service, time limits for effective service, and amendments to service are similar to the Mississippi rules.
 

Statutes of limitations

An action is timely in both federal court in Mississippi and state court in Mississippi if a complaint is filed before the statute of limitations expires so long as valid service is subsequently obtained.

1. Miss. R. Prof. Conduct 4.2.

2. Mississippi Rules of Civil Procedure (adopted by the judiciary) provide for methods of serving out-of-state defendants, but legislation establishes the scope of long-arm jurisdiction, and the rules merely prescribe methods for serving process. See Miss. R. Civ. P. 4 comment.

3. There is statutory immunity to service for persons who entered the state pursuant to a summons directing them to attend and testify in a criminal case for matters that arose before their entry into the state. Miss. Code Ann. § 99-9-35. The privilege of raising a defense of lack of personal jurisdiction (without submitting to personal jurisdiction), Miss. R. 12, must be construed to grant an immunity to personal service in the matter in which the defendant has entered an appearance contesting jurisdiction.

4. Miss. Code Ann. 13-3-57 establishes jurisdiction over any nonresident person not qualified to do business to 1) makes a contract with a Mississippi resident to be performed in whole or part in the state, 2) commits a tort in whole or part in the state, and 3) does any business or performs any character of work or service in the state.

Miss. Code Ann. 13-3-63 establishes jurisdiction over nonresident motorists who commit torts driving in state.

5. Miss. Code Ann. § 13-3-15.

6. This discussion applies to Circuit, Chancery, and County courts, but Justice Courts are not subject to the Mississippi Rules of Civil Procedure.

7. The United States is a signatory to the Hague Convention, which provides for service in other countries. The treaty provides for service by deliver y of documents (summons, complaint, etc.) to a central authority of the foreign country, but such process should probably be forwarded by the "requesting authority" (the court, through the clerk). Obviously, plaintiff's attorney will have to make the necessary arrangements.

8. "Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice of acknowledgment of receipt of summons." Miss. R. Civ. P. 4(c)(3)(C).

9. This limited is expressed in Miss. R. Civ. P. 4(c)(5) even though no such territorial limit is included in the statute authorizing certified mail on corporations, Miss. Rev. Code Ann. §§ 79-4-5.04, 79-4-15.03.

10. Fed. R. Civ. P. 64.