When a defendant lives in another state, your firm may need to follow the service of process rules of the court hearing the case and the laws of the state where the papers are delivered.
The court’s rules decide who may serve the papers, which methods count, and what proof the court will accept. Process serving laws vary from state to state, so a method that works for a local defendant may not be valid across state lines. If the serve does not meet the governing rules, your firm may need to arrange service again before the service deadline.
This guide explains which rules apply and where state rules differ. It also covers the service methods that can reach a defendant in another state and the information that helps a provider complete the serve.
Which Rules Govern Service of Process on an Out-of-State Defendant
Service of process gives a defendant formal notice of the case. The rules that govern service of process in a given case depend on the court hearing that case. A state court follows its own statutes and court rules on service of process, including any rules for serving a defendant outside the state. In federal court, Federal Rule of Civil Procedure 4(e)(1) allows an individual to be served by following state law for serving a summons.
Three factors usually decide which service of process requirements apply to your matter:
The court and state where the case is pending
The state where the papers will be delivered
The type of defendant, because federal rules set out separate service provisions for individuals and for businesses
Requirements to check before an out-of-state serve
Rules can differ by state and court on who may serve, the service deadline, the form of proof, and which days papers may be served. A provider of service of process can help your firm identify the requirements that apply. Counsel decides how a rule applies to your matter.
Who may serve: A state can set its own limits on who may serve process. For example, Texas Rule of Civil Procedure 103 allows a sheriff, constable, or other person
authorized by law to serve. It also allows service by a person at least age 18 years who is authorized by law or by written court order, or by a person certified by the Judicial Branch Certification Commission. Our list of requirements for qualified process servers covers eligibility more broadly.Service deadlines: The rules of the court hearing the case set how long the plaintiff has to complete service after filing. In federal court, Federal Rule of Civil Procedure 4(m) requires service within 90 days after the complaint is filed. If a defendant is not served in time, the court, on motion or on its own after notice to the plaintiff, must dismiss the action without prejudice against that defendant or order service within a specified time. The court must extend the time if the plaintiff shows good cause. Our guide to completing service in federal court covers the federal process in more detail.
Proof of service: The court hearing the case sets the form of proof it accepts. Federal court requires proof of service to be made to the court unless service is waived. The proof must be the server’s affidavit unless a United States marshal or deputy marshal made the serve. Our overview explains what a proof of service shows.
Days when service is allowed: A state can restrict the days on which papers may be served. For example, Florida Statutes section 48.20 makes service of process on a Sunday void. The statute has one exception. It applies if the person requesting service makes an affidavit that they have good reason to believe the person to be served “intends to escape from this state under protection of Sunday.” An officer with an order from the trial court judge may then serve on Sunday. Our article on when a process server can deliver documents covers timing rules in more detail.
Choosing a Service Method and Preparing Information for the Provider
The method your firm chooses for service of process has to
be one the governing rules allow for the defendant. In many cases a process
serving provider may assign a local server who works in the defendant’s state
and knows the court rules for the venues there.
The main methods are:
Personal service: The process server delivers the summons and complaint to the defendant in person. Federal rules denote personal delivery as a method for serving an individual in federal court.
Substituted service: This is a fallback option that may be used when personal service cannot be completed. Under substituted service, when the governing rules allow it, the process server leaves the papers with someone other than the defendant. Our article about how substituted service works explains how the requirements vary.
Service by mail: Some states allow mail service on a defendant outside the state. For example, under California Code of Civil Procedure section 415.40, a California summons may be served on a defendant outside California by first-class mail, postage prepaid, requiring a return receipt. Service by this method is complete on the 10th day after mailing.
Two different problems can slow an out-of-state serve. When a defendant is avoiding service, the process server may need to make attempts at different times and record each one. Our tips fortracking down avoidant parties cover that approach. An outdated address may mean your firm needs to request skip tracing, a separate service that locates the defendant, before the next attempt.
To help the process server identify and reach the defendant, your firm can give the provider:
A physical description (weight, height, body type, hair color and style, tattoos, scars)
A recent photograph of the defendant
A description of the defendant’s vehicle and the license plate number, if available
The defendant’s typical work schedule
The type of case, such as a motor vehicle accident, assault, or divorce
Any special circumstances, such as a hearing impairment, aggressive animals at the property, or a history of avoiding service
These details help the process server recognize the defendant and plan when to attempt service. Accurate information can help the server avoid wasted attempts, which affects how long service can take.
Our paralegal’s guide to interstate service of process takes a closer look at coordinating and documenting a serve across state lines.
Planning Out-of-State Service Before the First Attempt
An out-of-state serve goes more smoothly when your firm confirms the governing rules, the method they allow, and the defendant’s details before the first attempt. Those steps affect whether service is completed within the deadline and whether the proof meets the requirements of the court hearing the case.
Proceed’s Service of Process covers all 50 states through a nationwide network of vetted, professional process servers who have local expertise. We complete 85% of our serves on the first attempt.
Contact us to discuss your firm’s out-of-state service needs.
Frequently Asked Questions
What happens if the defendant cannot be served at the out-of-state address?
When a defendant cannot be served at the out-of-state address, the next step depends on why the attempts failed. The process server documents each unsuccessful attempt. Those notes help your firm decide whether to request another attempt, update the address, or ask counsel about another method. If the address is outdated, Proceed’s Skip Tracing searches public records and lawfully obtained sources to locate the defendant.
If the defendant still cannot be served, some states allow the court to order another method.
How can our firm track an out-of-state serve and receive proof of service?
With Proceed, your firm receives real-time status updates on each serve, including attempts and completions. Process servers in our network record attempt details such as digital timestamps, GPS coordinates, and location photos where applicable. Once delivery is complete, proof of service is prepared according to the local court rules, and your firm can access it as soon as it is generated. If the court hearing the case requires the proof to be filed, your firm confirms who will file it.
Can our firm ask a defendant in another state to waive service in a federal case?
Yes, in a federal case your firm can ask the defendant to waive service, and the defendant decides whether to return the waiver. Under Federal Rule of Civil Procedure 4(d), a defendant in the United States has at least 30 days after the written request is sent to return it. A defendant who returns the waiver on time does not have to answer until 60 days after the request was sent.
If the plaintiff and the defendant are both located in the United States and the defendant fails, without good cause, to return the waiver, the court must order the defendant to pay the expenses later incurred in making service. The defendant must also pay the reasonable expenses, including attorney’s fees, of any motion needed to collect those service expenses. If the waiver does not come back, your firm arranges formal service.
