Friday, August 3, 2012

Frequently Asked Questions About Serving Legal Process


At RapidRPS.com, we are committed to bringing you, our client, the best in on-time, consistent and professional service of process.  We recognize that our business depends on your business, and strive toward a working relationship that is both beneficial and profitable in servicing your needs.  We work to distinguish ourselves in providing the best service possible to our clients.
Disclaimer:  The following is for educational purposes, only, and is not to be considered legal advice.  If you wish legal advice, you should consult your own counsel.  If you have further questions, you are welcome to contact our office.
Who can serve legal process in Arizona?
In Arizona, there are generally three parties who can serve legal process:  the Sheriff, the Constable, and private Process Servers.  The Sheriff and Constable are elected officials.  Their deputies carry out their duties, specifically law enforcement and civil process as mandated by law.  As peace officers, their powers of arrest include the ability to arrest persons on probable cause (suspicion of the commission of a felony), as well as reasonable cause (witnessing a criminal act).  Sheriffs, Constables and other peace officers may also arrest a person on a warrant issued by the court, such as for failure to appear in a civil proceeding (contempt of court). 
Process Servers are private citizens appointed by the court to serve civil process as a profession.  The Process Servers of RapidRPS.com are officers of the court. (ARS §11-445(I)).  Process Servers in Arizona must pass a background check, as well as pass a written examination administered by the Superior Court.  Process Servers must also participate and obtain at least ten hours of continuing education annually.
Why is serving legal process so important?
In the case of Milliken v. Meyer (1940) 311 US 457 463, the court said “Service of process must be made in a manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.”  Without proper service of process, the other side is not afforded their rights to defend their interests.  In civil proceedings, all sides must have an opportunity to appear and be heard by the court.
What is RapidRPS.com?
RapidRPS.com is a legal services company located in the greater Phoenix, Arizona area dedicated to serving legal process.  We specialize in Same & Next Day Service.  We have facilities and personnel to conduct process serving, skip tracing, public record searches, court filing, on-site legal document copy, and loss mitigation (face-to-face) contact.  RapidRPS.com can deliver your legal papers nationwide through our network of private process servers, fellow members of NAPPS, CALSPro (formerly CAPPS), APSA, ILAPPS, FAPPS and other professional process server associations.  We are also one of the few Process Servers who are authorized to serve legal process in all of the state prison facilities in Maricopa and Pinal counties.
What types of papers can RapidRPS.com deliver?
Per Arizona Revised Statutes, section 11-445(I):  “Private process servers duly appointed or registered pursuant to rules established by the supreme court may serve all process, writs, orders, pleadings or papers required or permitted by law to be served before, during or independently of a court action, including all such as are required or permitted to be served by a sheriff or constable, except writs or orders requiring the service officer to sell, deliver or take into the officer's custody persons or property, or as may otherwise be limited by rule established by the supreme court.”
RapidRPS.com regularly serves legal papers that are served by the sheriff or constable, except papers requiring the physical taking of property or the arrest of persons.  In addition, process servers may also deliver collection and other notices to persons and entities as their clients may assign.  RapidRPS.com regularly serves Writs of Garnishment for levies against bank accounts, employment (payroll), and other streams of income.
How is service of process made?
At RapidRPS.com, we have five criteria that must be satisfied to effect service of process.  We are happy to educate our clients about how their papers get served.  The most common elements to service of legal process are:
IDENTIFICATION:   
The Process Server must be able to identify the party served.
PROXIMITY:
The Process Server must be “within easy speaking distance” to communicate that service of process is being performed.  (See In Re Ball)
CONTACT, NOTICE & DELIVERY:
The Process Server must make personal (NOT physical) contact with the party to be served.  The server should identify him/her self as a process server at the time of service.  (This element is required in some states, such as Arizona and Florida.)  The Process Server must give notice to the person served that he/she is serving legal papers. The server must inform the person being served of the general nature of the papers.  (Florida requires a detailed explanation of the lawsuit.)  The Process Server must give the papers to the person being served.

Can the defendant be served without his consent?
Yes.  Service of process is performed regardless of whether the person “accepts” or “refuses” service.  Often times, process servers must perform a “drop serve”, leaving the papers at the foot of the person who refuses to accept service by taking the papers in hand.  See, Does a person served have to be touched with the papers?
The Supreme Court, in the case of In Re Ball, said, “…when men are within easy speaking distance…service cannot be avoided by denying service and moving away without consenting to take the document in hand”.
Does a person served have to be touched with the papers? 
No.  That is a fallacy.  The unwanted touching of a person under Arizona statutes may be considered assault.  Under ARS §13-1203(A)(2) and (3), intentionally or knowingly placing another person in reasonable apprehension of imminent physical injury or touching another person with the intent to provoke such person are both criminal offenses.   
We at RapidRPS.com have received process with instructions to “place into the hands of” or “touch the person with” the legal process to be served, however, a defendant or other person to be served does not have to “touch” the papers in order to be served. Our process servers will not attempt to touch a defendant – instead, if a defendant does not voluntarily take the papers in his or her hand, we will drop them at their feet in their “personal space”.
What is an Alternative Means of Service?
Arizona is unique in allowing an Alternative Means of Service.  An Alternative Means of Service is one that does not strictly conform to personal or substitute service.  It is a different method ordered by the Court to serve a party.  The party may be actively avoiding service or the circumstances (i.e.: property posted, “No Trespassing”) may make it otherwise difficult to serve the party.  The basic requirements for obtaining an Alternative Means of Service are showing the court sufficient Due Diligence and a necessity by the moving party to have the court issue an order allowing such Alternative Means of Service. 
The term, Alternative Means of Service is defined in the Arizona Rules of Civil Procedure, Rule 4.1(m), as follows:           
ARCP, Rule 4.1(m): Alternative or Substituted Service:  “If service by one of the means set forth in the preceding paragraphs of this Rule 4.1 proves impracticable, then service may be accomplished in such manner, other than by publication, as the court, upon motion and without notice, may direct. Whenever the court allows an alternative or substitute form of service pursuant to this subpart, reasonable efforts shall be undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in any event, the summons and the pleading to be served, as well as any order of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served. Service by publication may be employed only under the circumstances, and in accordance with the procedures, specified in Rules 4.1(n), 4.1(o), 4.2(f) and 4.2(g) of these Rules.”
What is Due Diligence?
Due Diligence is a term of art.  This is a requirement the courts are increasingly imposing on process servers.  Due Diligence may mean different things in different jurisdictions.  However, in all jurisdictions, the common thread between the courts is the desire for multiple attempts to attempt personal service upon the Defendant.  These efforts contribute to constructive notice, and in Arizona may serve to support a party’s request to the courts for an Alternative Means of Service
How can a stakeout benefit me?
Most often, the use of a stakeout is a last resort to service of process.  With the inclusion of the Alternative Means of Service in our arsenal, RapidRPS.com rarely recommends the use of a stakeout for service of process.  Usually, a stakeout is reserved for service of legal process that requires personal service only – such as a Judgment Debtor Examination, Temporary Restraining Order, or other such legal process.  Additionally, it is usually limited to those papers coming to RapidRPS.com from out of state (foreign) courts which do not authorize an Alternative Means of Service where personal service only is required.
What is the difference between an Alternative Means of Service and Service by Publication?
While both methods of service are allowed by the Arizona Rules of Civil Procedure, the most significant difference between the two methods are that one may be used for most legal process when the residence of a party to serve is known (Alternative Means of Service), and the other used when the residence of the party is known or unknown, and service of a summons is required (Service by Publication).
How do I know that the subject has been served?
At RapidRPS.com, we take service of process very seriously, and do our best to make sure our clients’ needs are accommodated.  At RapidRPS.com, we have a duty not only to the courts, but to our clients (as well as the party to serve), and our Process Servers are urged to take extensive notes on each attempt to serve.  Photographs of the scene where service of process is attempted or concluded are obtained whenever possible.  Proactive steps are taken whenever reasonable and possible to assure that documentation is complete.  Our process servers are equipped with smart phone or broadband capability (such as a Blackberry, Droid, Palm, or in-car laptop) to communicate from the field, in writing.   At RapidRPS.com, we get you the reports you need from the field in hours, not days.
I have an Order of Protection that needs to be served.  Can you do it?
At RapidRPS.com, we serve all papers related to Domestic Violence (Orders of Protection, Injunctions Against Harassment, etc.) on a rush basis.  We understand the urgency to get these types of papers served, fast.  These types of orders may be obtained through the Justice Courts, Municipal Courts and the Superior Courts.  If you have such a paper, give us a call.  We know the importance of these types of papers and will be happy to help you. 
At RapidRPS.com, we believe that when we understand our clients' needs and the documents they give us to handle, the better we are and more satisfied our clients are.  Give us a call at (877) 472-7431 or email at service@rapidrps.com for more.
Disclaimer: This article was written for educational purposes only. Nothing in this communication should be considered legal advice. The reader should do his/her own research to verify the accuracy and applicability of the information presented.  At RapidRPS, we not only serve legal process, but also prepare legal documents for enforcement of your judgment and other purposes. Neither RapidRPS nor any of our employees, assigns or agents are attorneys. We do not render legal advice. If you require legal advice, please consult your own counsel. 

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