“Drop Service” and its Interpretation

As process servers, we get assignments from attorneys telling us their various standards of acceptable “drop service” and service instructions. The instructions vary from, “Must place in defendant’s hand”, to telling us that “drop service” cannot be done unless the defendant consents to being served.

All persons named in a lawsuit are entitled to due process, beginning with receiving notice of the suit. However, for clarification, nobody wants to be served, and there are very few who “consent” to being served. Most people don’t want anything to do with being served. Shoving papers into someone’s hand can be considered a form of assault. Reputable process servers won’t do that.

So what do we do? When someone attempts to evade, or walk away, we leave the papers in the “personal space” of the person served. The person served may be the defendant, in the case of giving personal service (actual notice), or a person who resides with the defendant when making substitute service (giving constructive notice). 

Legal documents (legal process) served must to be visible to the party being served – the papers must be “open” and “notorious”. Heading off claims of non-service by a defendant who files a motion to vacate a judgment is often done by process servers who use a body cam, dash cam, or another person to shoot surveillance photos or video to be used as evidence in such circumstances.

In Illinois (and other states), “You can be served without knowing about it.  If the Summons is served to someone at your residence, and then copies are mailed to you, it's effective as long as it’s at your “usual place of abode,” and on “some person of the family or a person residing there,” who’s at least 13 years old.”[1] Most states and the Federal Rules of Civil Procedure[2] have provisions for serving a defendant by leaving the papers with someone other than the defendant at their residence. In Texas, substituted service requires a court order. Other states may consider “posting and mailing” to be a form of substituted service.[3]

Several appeals court rulings have addressed service of process, and one in particular set the standard which most process servers follow. That most notable case is In re Ball, which established critical language in serving legal process, citing proximity and refusal to accept service: 

“We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand.” [4]

So, regardless if the person served takes the papers in hand, service is effective at the time of presentation. Service is effective whether or not the person served picks up the documents or ignores them. Like I tell my students, process servers give the gift that cannot be refused. Once it’s given, it’s not returnable – the papers are in the custody and are the responsibility of the person served.

[1] https://www.illinoislegalaid.org/legal-information/i-was-never-served-lawsuit-do-i-need-go-court

[2] FRCP Rule 4(e)

[3] Code of Virginia §8.01-296

[4] In re Ball, 2 Cal.App.2d 578, 38 P.2d 411 (1934)