December Process Serving Legislative Updates

• December 14, 2010
• by ServeNow.com Staff
• Legislation

Each month, ServeNow.com takes a look at the legislative news that affects the process server community on both statewide and national levels. If you have news from your state – anything from changes in court fees to information about the formation of a new state association – this is your forum to share it with your peers. Send your process server news to [email protected] and we will include it in the next month’s ServeReport newsletter.

Here’s this month’s news for process servers, by process servers.

Illinois and Arizona

1. Illinois – There is a potential new bill that would require all SPS officers to register with the sheriffs in each county in order to serve process.

The bill has not been passed yet, but part of SB 3941 reads: “In a provision that allows a court to appoint a certified private detective agency as a special process server, deletes language allowing any employee of the private detective agency to serve the process under the appointment.”

This is concerning to the attorneys because they will have to request every process server working for an agency be added to the standing order, and the order would have to be changed whenever a process server left an agency or a new one was hired.

2. Arizona Court of Appeals Ruling (Maricopa only) – If service has not been obtained on the third attempt, an application for an Order Permitting & Motion for Alternative Service must be submitted to the court with the affidavit of non-service.

Ken Berke
ProVest Vice President of Contractor Relations

Washington

Matt Klein, president of the Oregon Association of Process Servers (OAPS) and a board member of the Washington State Process Servers Association (WSPSA), let us know about a decision by the Washington Department of Licensing regarding a fine of a collection agency, which he says has potentially serious implications for the process serving profession in Washington. To read the PDF of the decision, click here. Klein’s notes on the decision are included below.
The adjudicator in this case appears to have stepped far outside his area of jurisdiction. As you can see in the “Conclusions of Law” (section 2):

• 2.1 – The adjudicator took a huge leap in deciding the director of the dept. of licensing had jurisdiction over the subject matter.
• 2.6 – He quotes RCW 19 16 250, which addresses the collection agency and its employees. It does not address independent contractors or vendors, which is what the process service company should fall under.
• 2.7(d) – He has rewritten the definition of process serving, by deciding that the service of process is a form of communication with a debtor. NOTE: I’d also like to point out that at this point in the document, the collection agency is wrongly referred to it changed from CRG to CSG).
• 2.8 – Here he refers back to his original incorrect finding that the service of process is a communication to collect a debt. He phrases it as “an agreement to provide services relating to communicating with debtors.”
• In section 2.9, the adjudicator grossly misinterprets agency law. He has determined the process server is an agent of the collection agency, and the agency is therefore liable for his actions as their “agent.”

One has to wonder if this bureaucrat even understood what he was writing, let alone what the true meaning of the law is.

Matt Klein
OAPS President and WSPSA Board Member

New York

Larry Yellon, president of the New York State Professional Process Servers Association, tipped us off about this important court decision in New York, which we’ll summarize here:

A woman riding as a passenger on a tour bus in New York City in 2000 was injured. She filed a summons and complaint naming both the bus driver and the tour bus company as defendants. In 2003, a Pennsylvania-based process server served the summons and complaint by personal service on a company vice president at the tour bus company’s Pennsylvania headquarters.

The tour bus company failed to respond to the summons and complaint even after the plaintiff’s counsel sent a notice of default by mail. The plaintiff moved for a default judgment and served the company with the motion papers by mail. The Supreme Court granted the motion, and the company failed to appear at an inquest, so in 2005 the court granted the plaintiff a judgment of $450,000 plus interest, costs, and disbursements.

In 2007, the defendant moved to dismiss the action and vacate the default judgment. They argued that the process server had not been authorized to effect service in Pennsylvania because, at the time of service, he was “not a New York resident, he was not a sheriff authorized to make service by Pennsylvania law, and he was not an attorney, solicitor, barrister or equivalent.” Because he wasn’t authorized under CPLR 313, the company argued that Supreme Court had not acquired jurisdiction over the matter.

Supreme Court denied the motion, but the Appellate Division later reversed it. The plaintiff then cited CPLR 2001, which states that the court may permit a mistake, omission, defect or irregularity at any stage of an action to be disregarded if a substantial right of a party is not prejudiced.

So the main question before the court was because the process server’s residence renders him unauthorized to serve process, is that “an irregularity that courts may disregard under CPLR 2001, or a jurisdictional defect that courts may not overlook.”

The court decided that it was an error that can be disregarded. In their own words: “… delivery of a summons and complaint by a process server who is unauthorized to serve simply because of his place of residence will not affect the likelihood that the summons and complaint will reach defendant and inform him that he is being sued. We, therefore, conclude that a defect related to the residence of a process server has no effect on the likelihood of defendant’s receipt of actual notice, and the court may choose to correct or disregard it as a technical infirmity under CPLR 2001.”

To read the entire decision, visit: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08767.htm#1FN.

Have news from your state? Contact us and we will include it in next month’s ServeReport News Roundup. You can also request to receive our monthly e-mail reminder asking for your process server news.