Service of process follows a predictable path in most cases, repeating the familiar pattern of filing, serving court documents, and filing the proof of service. But an evasive party can turn even the best prepared process serving on its head by wrecking timelines and stacking on the cost of locating a person who does not want to be found.
The sections below explain what avoidance changes for the case, then offer five tips for serving a party who is avoiding service. Examples from several states show how refusals, obstruction, workplace service, and alternative methods are handled.
Common Tactics Used to Avoid Service
It’s a reality of litigation: a party named in a lawsuit may try to evade the process server. When a server’s attempt notes describe a party using one of the tactics below, your firm has a sign that the party is avoiding service. These tactics include:
Not answering the door
Staying away from home and work
Denying their identity when the server asks for them by name
Changing their appearance, for example with a hat and sunglasses, to make identification harder
Refusing to take the papers
A refusal, however, does not always mean the serve failed. For example, in California, if the person being served refuses to take the papers, the server may leave the papers on the ground in front of that person; and service is still valid.
If a California attempt note reports a refusal, your firm can ask the provider how the server handled it and whether service was completed.
What Happens to a Case if a Party Avoids Service
Avoidance delays a case but does not have to stop it. Each unsuccessful attempt still uses part of the time allowed for service, so your firm’s next step after the first few attempts matters.
Successfully reaching a party who is avoiding service may take several attempts. If personal delivery keeps failing, the rules of the court handling the case may allow an alternative method.
Some alternative methods require no court order. Others require your firm to ask the court for permission first.
Our guide to when service cannot be completed covers those options in more detail.
What can follow later in the case
In federal court, two rules set out consequences that can follow:
Entry of default: Under Federal Rule of Civil Procedure 55(a), when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
Contempt for disobeying a subpoena: Under Federal Rule of Civil Procedure 45(g), the court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.
Neither rule penalizes a party for avoiding the server. Each rule applies at a later stage: Rule 45(g) to a person who has been served, and Rule 55(a) after a party fails to plead or otherwise defend. That is why completing service by a valid method matters to your firm.
State laws on obstructing service
Some states make interfering with service a crime. For example, in Illinois, 720 ILCS 5/31-3 provides that a person who knowingly resists or obstructs the authorized service or execution of any civil or criminal process or order of any court commits a Class B misdemeanor. The statute is directed at a person who resists or obstructs service, not the party who is hard to find.
5 Tips to Serve Court Documents on Evasive Parties
Some of the tips below depend on information or decisions your firm controls. Others depend on how the provider and the process servers it assigns schedule and record their attempts.
1. Make sure every attempt is documented
If your firm later asks a court to approve another method, the server’s record of each attempt shows the court what was tried first.
A useful attempt record captures:
The date and time of the attempt
The location of the attempt
The method of service attempted
What the server observed at the location
Any refusal and how the server handled it
Depending on the provider, each attempt record may also include GPS coordinates, timestamps, and photos. Those details give your firm more information to review when an attempt fails, and use it to plan future attempts.
Proof of service is a different document. It records how and when service was completed. When the court requires proof of service, the filing party files it.
2. Work with a provider that varies the time and place of attempts
When a party is avoiding service, an attempt during the usual hours may not succeed. Some providers may schedule later attempts for mornings, evenings, or weekends to improve the chance of reaching the party.
If attempts at the party’s home keep failing, the server may try the party’s workplace instead. The rules for serving a party at work vary by state.
For example, Florida statues require an employer contacted by an individual authorized to serve process to allow service on an employee in a private area the employer designates.
Your firm can ask the provider how it decides when to change the time or place of an attempt and how it reports that change.
3. Give your provider everything you know about the party
Your firm may already have details that make the next attempt more likely to succeed. The more the provider knows about the party, the better the server can plan where and when to try.
Your firm can send the provider:
The party’s current address
The party’s place of employment
Places the party often visits
Any social media profiles linked to the party
If the party seems likely to avoid service, telling the provider early lets the server plan the first attempt around that risk.
4. Request skip tracing when the address is outdated
Evasion and an outdated address are different problems. When a party avoids the server at a known address, the response is more attempts or an alternative method. When a party has moved without leaving a current address, the party has to be located first.
Skip tracing can provide a solution to the second problem: It locates a party’s current contact information when the address on file is outdated. Depending on the provider, a verified skip trace may search public records, lawfully obtained identity and location data, social media profiles, and professional licenses. A verified skip trace may then cross-check the results.
Skip tracing is not a routine part of every service attempt. If attempt notes show the party no longer lives at the address, your firm can ask the provider whether skip tracing is available before another attempt.
5. Prepare for an alternative method of service
The alternative methods available, and the conditions for each, differ by jurisdiction. In federal court, service is allowed under the law of the state where the district court is located or where service is made. That means a state method may also be available in a federal case.
Alternative methods include:
Substituted service at a residence: The server leaves the papers with someone else who lives at the party’s home. A federal court rule allows leaving a copy at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.
Delivery plus mailing: The server delivers the papers to another person, and a copy is also mailed to the party.
Court-authorized alternative service: When earlier attempts have failed, your firm may ask the court to approve another method.
Service by publication: Notice is published in a newspaper when the party’s residence cannot be found.
A litigation support service provider whose process servers know the service rules in the courts where they work can help your firm understand which methods the court allows; and what the attempt record should show. Counsel decides whether to seek an alternative method.
Our article on myths about substituted service explains how the requirements for substituted service vary.
How Proceed Helps Firms Serve Evasive Parties
An evasive party turns service into a series of decisions rather than a single delivery. Your firm keeps more options open when it shares what it knows about the party early and reviews each attempt record as it arrives. Counsel can then weigh an alternative method before the time for service runs short.
Proceed’s Service of Process gives your firm a nationwide network of vetted, professional process servers who have local expertise. Servers in our network document every attempt, and your firm receives real-time status updates while the serve is in progress.
Contact us to discuss a matter in which a party is avoiding service.
Frequently Asked Questions
Can a plaintiff recover the cost of service from a defendant who ignored a waiver request?
In federal court, yes: Under Federal Rule of Civil Procedure 4(d)(2), the court must impose service expenses on a defendant located within the United States who fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States.
State rules differ, so counsel can confirm whether the court handling the matter allows similar recovery.
What will Proceed tell our firm after an unsuccessful attempt?
After an unsuccessful attempt, the process servers in our network document the outcome and describe what happened during the visit. Their notes may cover conditions at the location, confirmation of occupancy, or other observations. Your firm can use those notes to decide whether to request another attempt, send us an updated address, or pursue an alternative method.
How quickly can Proceed find a new address for a party who has moved?
With a Quick Skip, our Skip Tracing returns unverified results within 24 hours in most cases.
