How Process Servers Handle Non-Serves

• March 04, 2021
• by Stephanie Irvine
• Articles

What does a process server do if they cannot serve a person? Although not favorable, process servers are sometimes faced with not being able to serve someone that their client has hired them to serve. This can be frustrating for the process server and the client as a process server’s primary goal is to get the job done. If a defendant ends up not served, it can negatively impact the court proceedings. Unfortunately, non-serves can occur for a variety of reasons, and it’s important for new process servers to know how to prevent them when possible, understand how and why they can happen, how to handle them, and how to charge for non-service.

Prevent non-serves if you can

Because no one (except maybe the individual who is avoiding service) wants attempts to result in a non-serve, it is important that the process server do their best to locate and serve the individual. Sometimes, this requires extra steps to uncover locations where the individual to be served would regularly be (work, home, sports schedules, to name a few). Due diligence efforts will also likely include checking property records, talking to neighbors, and possibly even further skip-tracing efforts.

Process Server Michael May advises that sometimes those who are getting served aren’t always honest, and he recommends that servers go the extra mile to get the job done: “Before non-serving, process servers should do their due diligence. Run tags. Check property records and speak to neighbors. We get lied to all the time.”

Sometimes process servers are lied to by the individual they are trying to serve. If a person knows they are about to be served but does not want to accept the papers, they will avoid service. Sometimes, the person will attempt to obfuscate their identity, pretend they are not home, and even directly lie when confronted.

“I always check the license plates in the driveway. [You] would be surprised how often people the homeowner ‘never heard of,’ park in their driveway,” said process server Steven Straper.

It’s up to process servers to cut through lies and get the serve done when at all possible. In some states and counties, process servers can get the job done through drop service or other alternative means of service. Drop-service most frequently occurs when an individual refuses service and the process server knows the individual in question is the individual they need to serve. The process server quite literally drops the papers at their feet. With appropriate documentation, when accepted by the client, and where statutes allow, drop service can be sufficient in getting the job done.

Process server Davy Keith, manager of Quantum Process, also suggests avoiding non-serves by establishing open lines of communication, whether it's leaving a note when the door isn't opened or sending a message to the individual via their social media. He says, “I believe that communication is a benefit and making a person aware that you are trying to serve them papers isn’t always a bad idea.” Ultimately, according to Keith, it comes down to persistence. Reach out to the individual any way you can and be honest. It may not work every time, but such tactics have significantly helped Keith cut back on non-serves.

Why non-serves happen

When a process server is not able to effectuate service on an individual after a specified number of attempts, this is considered a non-serve. Non-serves happen for a variety of reasons, and not for a lack of trying.

For example, a person may genuinely no longer live at an address. It is up to the server to conduct due diligence to determine this to be a fact. Similarly, it is necessary to know whether the client wants the server to conduct skip-tracing efforts to locate a new address.

Another situation in which a non-serve may occur is when an address for a defendant doesn’t exist. For example, if the address is in the middle of a cornfield, there aren’t going to be any clues as to how to find them. However, the process server must conduct due diligence to ensure they don’t in fact have the wrong address or that their GPS hasn’t led them to an incorrect location when the address does in fact exist.

Sometimes servers can be put in a dangerous or unsafe situation where they cannot safely effectuate service. This could be with a hostile subject and where drop service is not permitted. No serve is worth a server’s life. Process Server Anthony Dunne cautions servers, “Trust your gut, and I am not talking about the burger you want for lunch. If you feel there is something off, chances are there is.”

Another instance where service may not be possible includes situations in which a specific type of service (or service location) has been prohibited by the client. A server may be instructed to specifically not serve an individual if they are at a specified location (could be work, school, etc.).

This list of examples is certainly not exhaustive as it is up to the server to determine whether it is possible to serve the individual. A process server should not consider a job non-service if they did not meet the agreed-upon/specified number and type of attempts, if they did not complete due diligence, or if they could have drop-served the individual.

How to properly document a non-serve

Proper documentation is a critical component in all serves and especially in non-serves. Every serve, no matter if it results in personal service, subservice, alternative service, or non-service requires a service affidavit. In the case of non-serves, process servers will need to complete the appropriate affidavit that affirms their attempts and the circumstances as to why they were unable to serve an individual.

Process servers should document every detail of their service attempts in the service affidavit or proof of service. If the server wears a body camera that includes a date and time, they should take stills of them speaking with any individuals. A GPS can also aid in proving where a server was and when. Regardless of what digital or visual proof is available, the process server should also be sure to take detailed notes - and immediately after each attempt while they are fresh in the server’s head. Include the typical required pieces of information but also go a step further. Take note of the weather, colors and types of clothing, the surroundings, etc. These details could be helpful if the service is ever challenged.

Learn more about completing an affidavit of service on ServeNowEDU.

Non-serves should not mean free work

In most cases, non-serves result in more work than a standard serve where the defendant is not avoiding service. If a process server has completed due diligence, they should still be paid for that time and effort. If the end result is non-service, it does not mean that no attempts were made, and process servers should not give away their time for free because often a non-service is not the fault of the process server.

Process servers should consider charging more for additional attempts beyond their standard offerings, skip tracing services, and even surveillance for those who double as private investigators if required.

However, it is also important that process servers have their pricing clear and up-front so that there are no surprises for the client. Ensuring that a process server’s client knows their pricing schedule before the server accepts the job can help avoid misunderstandings with regard to payment and ensure a healthy client relationship moving forward.

Server Jeffrey Cunningham echoes this sentiment, offering up suggestions for fellow process servers. He shares, “Since most non-serves (as opposed to bad addresses) take more effort than personal or substituted services, there should be no price reduction.” Cunningham also says, “It is very important that you have a clear understanding with your client ahead of time regarding any skip-tracing or follow-up to secondary addresses. If you simply do these [on] your own (even if the “extra” effort is successful), the client may not want to pay you for your effort. They simply may consider this part of the fee already agreed to. Best advice: if you have a lead, contact the client and get authorization prior to follow-up.”

Regardless of what a server expects on their next serve, it is important to take extra care to ensure that the client knows what service is included — and what isn’t.

Non-service is part of the job, but not the norm

The reality is that process servers all over the country may be faced with a non-serve at some point in their careers. However, with appropriate due diligence efforts, many process servers can get the job done. If it does happen, however, this information should help servers handle non-serves with less stress and confusion.