The New York Times reports on allegations (earlier here, h/t Patrick) that some process servers falsely claimed to have served papers on defendants who subsequently lost default judgments. Per one law encyclopedia:
The tricks of serving process papers can, however, reach a point that the courts will not tolerate because they subvert the purpose of service or threaten to disrupt the administration of justice. The most intolerable abuse is called sewer service. It is not really service at all but is so named on the theory that the server tossed the papers into the sewer and did not attempt to deliver them to the proper party. Sewer service is a fraud on the court, and an attorney who knowingly participates in such a scheme can be disbarred.
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You covered this, including a suit by Cuomo against one of the companies mentioned in the Times story, last April:
http://overlawyered.com/2009/04/sewer-service-and-civil-defendants/
Thanks for reminder, added link.
I hate when people say “everyone knows,” but “everyone knows” that sewer service is standard operating procedure for a too-significant sector of the collections bar here.
The purpose of service of a Summons is that the person served has notice of the lawsuit and may appear to defend himself. The problem of sewer service seems to be more prevalent in New York than in any other state. The NYS legislature and the NYS courts have the law with respect to service so screwed up, it foreseeably breeds conditions that maximize legal wrangling and the overlawyering of this issue.
Many states allow service of process by certified mail or by certified mail with restricted delivery, and this solves most of the problems with sewer service. This method allows service to be effected cheaply, and the USPS will not be in cahoots with the attorneys (at least on certified mail issues).
To commence a lawsuit in NYS, personal service on an individual defendant may be effected in three ways:
(1) personal delivery of the Summons to the defendant
(2) personal delivery to someone of “suitable age and descretion” at the defendant’s place of business or “usual place of abode” with a follow-up mailing addressed to the defendant at the address where delivery to someone of suitable age and descretion occurred
(3) After due diligence in trying to serve the defendant by another means, by affixing the papers to the door of the defendant’s residence with a follow-up mailing (“nail and mail”)
Proof of service to the court in these instances is effected by an affidavit of service by the process server detailing that (s)he served the papers in one of the above manners and describing the individual served.
Each method of service in New York relies on the unverifiable honesty of the process server. This problem needs to be fixed. Requiring service by certified mail, Express Mail, or Priority Mail with Signature Verification, as the initial method of service will result in inexpensive and independently verifiable service of process in the majority of cases. This method leaves an incontrovertable paper trail that the person swearing to service actually mailed something to a named recipient at a specific address. And if the letter is delivered, the name of the person who signed for it is known.
Only if the letter is returned “unclaimed,” or “addressee unknown” or “moved w/o forwarding address” should personal service be required. Digital cameras are cheap and ubiquitous. Requiring the process server to snap a picture of the person served, or at least the location where (s)he was served, and submit it with the Affidavit of Service, would solve a significant portion of the remaining sewer service problems.
Finally, if a follow-up mailing is required, a USPS Certificate of Mailing should be required as additional proof of the mailing rather than just relying on the process server’s affidavit.
The flip side of this coin is the situation where the defendant undeniably received the legal papers and had adequate notice of the lawsuit, but claims a technical defect in the manner in which he was served. In Macchia v. Russo, The Court of Appeals in its infinite wisdom stated that service was not good since “[n]otice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court.” They held that process handed by the process server to the son of the intended recipient, who then immediately handed it to his father was not personal delivery, and since it was handed to someone of suitable age and discretion it required a follow-up mailing which was admittedly not done.
Whenever I have to serve something on another attorney in non-electronically filed cases, I always send it by Priority Mail Delivery or Signature Confirmation, Ceritifed Mail, or by e-mail and regular mail or by fax and regular mail. Attorneys lie with respect to receiving things, and before I implemented this policy, if you believed the receiving attorneys, the USPS would have about a 10% delivery success rate. Even when I sent a communication by Priority Mail Signature Confirmation, and I had the attorney’s signature on the receipt posted by the USPS to its website, the attorney claimed to the court that he never received it. Of course the court did not care so this nonsense goes on and on and on.
VMS, that’s a very good summary of the law and practice. Unfortunately, I am sure you will agree that your last sentence is pretty much the only one that matters — as it is in every court.