Service of Process - What is it?
For a court to have authority to make legal decisions and enter a judgment against someone, the court must have both personal and subject matter jurisdiction over that person. Subject matter jurisdiction involves the court’s ability or power to hear certain types of cases, whereas personal jurisdiction is the court’s power over a particular party. The court obtains personal jurisdiction over a defendant when the plaintiff obtains proper service of process of the summons and other related documents, including the complaint. Service of process is the way by which a party receives notice of the initiation of the litigation and is thereby afforded an opportunity to respond.
In Colorado, service of the summons and complaint (“lawsuit”) may be made by personal service, substituted service or, in certain circumstances, by mail or publication in a newspaper. Service by mail or publication generally needs to be approved by a court before it is permitted, and is not available in every case. In Colorado, the person serving the lawsuit, also known as a process server, must be over eighteen years of age and not a party to the action.
Personal service on a natural person can be obtained several different ways, including serving the particular defendant directly, by leaving a copy of the lawsuit with an adult family member of the defendant at the defendant’s usual place of abode, or at the defendant’s usual workplace with a person authorized by law to accept service. Personal service on a non-natural person, such as a corporation or trust, may be made by serving the registered agent or other person or agent authorized by law to accept service.
A lawsuit can even be served if the defendant refuses to accept service, as long as the process server is able to identify the person and the documents, and leaves the documents in a conspicuous place. Sometimes even when the defendant’s location is known, the process server is unable to serve the defendant because he or she is actively avoiding service. If this occurs, one option is to have the Sheriff attempt service. Another option is for the process server to perform a stake-out, where he or she will wait for an extended period of time outside of the known location of the defendant until there is opportunity to serve the defendant with the lawsuit.
Proof that the lawsuit was served on the defendant will need to be filed with the court and is generally referred to as an Affidavit or Return of Service, which is a statement made by the process server under oath as to the date, place and manner of service. If the lawsuit was served by mail or publication, a similar Affidavit must be filed with the court.
Service must be both proper and timely, in accordance with court rules, for the court to obtain personal jurisdiction over a defendant. It is important for both parties that service be proper in order to protect the rights of the defendant and to ensure that any judgment entered is enforceable.