As the coronavirus (“COVID-19”) crisis continues to lead the legal profession into uncharted waters, one issue remains less than clear: how service of process will be affected for both the parties who are being served, and the parties who are serving. There is no question that service of process is more difficult given the number of closed business locations and health concerns raised by personal service. Businesses should be equally concerned that they will unknowingly “accept” service at locations that are closed but for skeletal security personnel or unwittingly “refuse” service when no one is available to accept certified mail. Few of the emergency orders related to COVID-19 have addressed service of process. This article offers some practical guidance in light of state and federal service rules, which remain largely in effect despite stay-at-home and emergency court operations orders.
Federal and State Courts
Very few federal and state court orders related to COVID-19 have addressed service of process, and the ones that have addressed it neither discussed it in detail nor provided much guidance. For example, the United States District Court for the Southern District of New York issued a standing order stating that any requirement of personal service by the United States Marshal’s Service was suspended until further notice, but stated that service by mail and electronic service would proceed as usual. Other orders or temporary rules, such as temporary rule 12 approved by the California Judicial Council, mandate electronic service among represented parties for cases already underway but do not address service of process. Secretary of state offices also have been impacted. For example, some New York Secretary of State customer service centers are closed through April 29. Similarly, the Georgia Secretary of State’s office temporarily closed its in-person service window, but continues to accept service filings online, by email, or by mail.
In federal courts, Rule 4 of the Federal Rules of Civil Procedure still governs service of process. Rule 4 allows service by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process (and where an agency statute so requires by also mailing a copy).
In state courts, rules for service of process vary. Many states (such as New York and California) substantially follow Rule 4. However, a number of states allow service by certified mail or by FedEx or a similar service in the first instance so long as a signed delivery receipt is obtained.
Registered agents are choosing their own courses of action in order to navigate court orders, state and city emergency measures, and employee safety. For example, CT Corporation is operating normally and accepting process in-person, with the exception of the closure of some physical offices. Those physical offices continue to accept process by mail and physical drop-box. Process sent to a closed CT office will be re-routed to alternative sites for processing. Alternatively, ABC Legal (formerly MLQ Attorney Services) is accepting service digitally rather than requiring delivery of the originals.
Service on Corporations with Closed Physical Offices
COVID-19 has led numerous corporate clients to close many, if not all, of their physical offices. So, what happens if a plaintiff needs to serve a corporation during this time?
If a plaintiff is unable to serve papers on a corporation in a manner set forth in the rules, or if service is refused, then some state rules permit service by either publication – usually together with mailing a copy by first class mail – or first class mail. When relying on an alternative method of service, it is always a good idea to carefully document service attempts and the justification for using an alternative method.
Even in the absence of an express rule permitting alternative means of service, courts often will enter orders permitting service by these means once other attempts to serve have failed. As referenced above, it is important to document the inability to serve by conventional means. In addition, many of the state court COVID-19 emergency orders have extended limitations periods and deadlines for effectuating service.
How To Serve and Be Served in These Uncertain Times
To ensure that papers are served in a timely and proper manner:
- Check and double check all standing orders, temporary rules, or other guidance from the jurisdiction where service is to take place. New orders are released every day.
- Monitor service targets’ websites and public postings for information about where service is being accepted. It is very likely that business is not as usual, and service locations may have changed.
- Make sure that your process server does not leave your documents outside physical offices or with unauthorized personnel such as security guards, etc.
- Be flexible with the service target in agreeing to serve via alternate methods accepted under the state and federal rules.
For those concerned about receipt of service of process
To ensure that you do not refuse service in a manner that would trigger one of the service methods that easily can lead to lost service documents:
- If you have not previously used a service to act as your registered agent, now is a good time to consider the benefits of these services.
- Review and confirm that your list of statutory agents registered in each state is up to date and current.
- Work closely with your registered agent to make sure that it has a process in place to accept service on your behalf—especially in light of the varying protocols from court to court and state to state.
- If you will be unable to accept service at any physical location where a process server may attempt service:
- Consider posting a notice on the door where service normally would be attempted, stating that there is no one at the facility authorized to accept service or certified mail and list an address where process or certified mail should be directed. Make sure to document that the notice had been posted.
- Post on the internet the list of offices closed due to COVID-19 and unable to accept service as a result.
- Establish a protocol for routing and reviewing items if service inadvertently makes its way to someone at such an address.
- Ensure that you have a protocol for reviewing and routing all mail received by your legal department or legal personnel, as not to miss any papers served by FedEx or certified mail. Review the communication pipeline for service and make sure that there are redundancies in case someone in the chain becomes ill. It is a good idea to have a backup to the backup.
- Continue to monitor new filings to catch lawsuits where plaintiffs may contend that service was obtained but the papers were lost or misdirected.
- Where desirable (e.g., government agency from whom you receive regular subpoenas), reach out and offer to waive or accept service via an alternative method.
Stay up to date on all COVID-19-related issues by regularly visiting the Pepper Hamilton / Troutman Sanders COVID-19 Resource Center.