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Six Feet of Separation: Service of Process in the Era of Social Distancing

Posted By USFN, Tuesday, May 5, 2020

by Lisa Lee, Esq.
KML Law Group, P.C.
USFN Member (NJ, PA)


“Whatever disagreement there may be as to the scope of the phrase ‘due process of law’ there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard.”

-          Justice Oliver Wendell Holmes, Jr.

 

Justice Holmes said it best – there can be no due process of law without the “opportunity to be heard.”  A party who receives proper service of legal process is deemed to have been notified of the action being taken against them, and provided with an opportunity to defend that action.  Many states require that this service be “personal” or, failing that, made by another means that ensures the party is well aware of the action, and can be held accountable to the outcome.

Personal service is affected most often by municipal officers (sheriff’s deputies, constables, and the like) or private process servers, depending on the jurisdiction and the thing to be served.  Personal service is the preferred method for obvious reasons, and often requires that documents be “handed” to the party being served, or that they be signed for by the party being served.

 

In the current era of social distancing due to the COVID-19 pandemic, service of process has taken on new complexity. 

Sheriff and Constable Service has been restricted and delayed to varying degrees by state and local court closures, and the furloughing of some municipal employees, which is delaying service.

Private process servers have been affected by court closures as well, in that less filings mean less papers to serve, and a general downturn in business.  In addition, Stay at Home/Shelter in Place Orders and travel restrictions are preventing some process servers from doing their jobs at all.  Further complicating the job for those who are able to do it legally and safely in their states is the closure of the majority of businesses, which is making service on those businesses and their employees close to impossible.  Social distancing also necessarily affects how process servers conduct themselves.  How do you “hand” something to someone else and still stay at a safe distance?  Understandably, social distancing may result in an increased number of parties refusing service.  This will likely increase the need to serve by alternate means, often at increased cost.  If a service return notes that personal service was made on a party by a means other than handing the document(s) to the party, will that constitute good service?  In states where service requirements have not been relaxed to account for social distancing, this will be an evolving question for your local counsel as firms and courts resume more normal operations in the wake of COVID-19.

If personal service is not or cannot be affected, another method of service will be necessary.  One possibility, in some states and for some forms of notice, is signature required mail service. This form of service is sometimes an acceptable alternative because it is designed to provide notice to the particular person to whom the mail is addressed.  But, this method is not without its COVID-19 related challenges either.

In March 2020, the United States Postal Service (“USPS”) revised its signature required mail delivery procedures to account for the social distancing and health and safety concerns related to the pandemic.  The change in recognizes the close proximity and additional handling that occurs when a mail carrier must ask customers for a signature and government issued identification, when required. To reduce the health risks of this activity, the USPS has instituted a temporary policy whereby carriers will:

 

1) avoid ringing the doorbell when possible, and instead knock on the customer’s door;


2) avoid areas that may be frequently touched when knocking;

3) request the customer’s first initial and last name while maintaining a safe, appropriate distance;


4) request the customer’s first initial and last name so that the employee can enter the information on the electronic screen or hard copy items such as return receipts; and


5) ask the customer to step back a safe distance or close the screen door/door so that they may leave the item in the mail receptacle or appropriate location by the customer door.

 

These temporary measures seem quite reasonable.  However, in situations where the rules of court of other law require that mail be signed for by the recipient, it remains to be seen whether courts will agree that this altered process will stand muster from a due process standpoint. 

For default servicing practitioners, service of process was a procedural hurdle that, while sometimes cumbersome and time-consuming, was relatively straight-forward in most jurisdictions.  The COVID-19 pandemic has now added some curveballs to an otherwise fairly black and white process, giving new meaning to the phrase “never a dull moment.”

 

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