“You’re Served” May Not Mean You’re Served With a Lawsuit
Service of a lawsuit inside the State of North Carolina by a private investigator may not be valid service.
In North Carolina, a Summons and Complaint may be served upon a defendant in several ways including by Sheriff or by certified mail (although some cases suggest certified mail must also be “restricted delivery”). Rule 4 of the North Carolina Rules of Civil Procedure sets out the requirements for service and various options for service in detail.
If service is made in the State of North Carolina by a person (rather than for example certified mail) it must first be attempted by the Sheriff of the County where service is to be made. Rule 4(a) requires this. When a private investigator has been used to attempt service without appointment, our Courts have found such “service” to be invalid. See B. Kelley Enterprises, Inc. v. Vitacost.com, Inc., ___ N.C.App. ___, 710 S.E.2d 334, 339 (2011); N. Carolina State Bar v. Hunter, ___ N.C.App. ___, 719 S.E.2d 182, 189 (2011).
When a Sheriff refuses or neglects to do his duty in serving the Summons and Complaint, a private process server may be appointed by the Clerk of Court. See Williams v. Williams, 113 N.C. App. 226, 229, 437 S.E.2d 884, 887 (1994) aff’d, 339 N.C. 608, 453 S.E.2d 165 (1995).
Therefore, if you are served a lawsuit by a private investigator it may be possible to get the lawsuit dismissed for insufficiency of process. Service of other legal pleadings (e.g., a subpoena) may be made by a private investigator.
It is important to consult an attorney as soon as you are served because your actions could waive this defense.
About Post Author
4 Responses
Leave a Reply
You must be logged in to post a comment.
Alias and Plures Summons, which the serving attorney obtains from local courts when the local sheriff’s department fails to secure service in the matter, is the legal alternative for private investigators.
It does not matter whether it is the original Summons, an Alias Summons, an Endorsed Summons, or a Pluries Summons. Process must still be effected under Rule 4 of the North Carolina Rules of Civil Procedure.
You can always use certified mail, UPS, etc. under the statute as long as you comply with the requirements. However, for Personal Service, according to the case law, the Clerk has to appoint the private process server before anyone other than the Sheriff can serve and to do so, the Clerk must find that the Sheriff has refused or neglected his duties. It will be rare, then, that you will get such an order. However, if you serve it by Private Investigator and the person answers without raising the defense of insufficiency of process, the lawsuit is still good as that defense has been waived.
If you are trying to get child support papers served on someone that does not answer front door when they peep & see sheriff, or they drive their parents vehicles as a deguise themselves can the private investigator serve those papers to the other party on their job or somewhere publicly that the person usually is ,because the sheriiffs are only allowed to stay in there juridiction. I know this person that lives in a small town & are usually just 5 minutes across the county line which makes it difficult to serve them.
If you are serving in North Carolina, you have to use the Sheriff for personal service or get an Order from the Clerk allowing you to use a Private Investigator. However, you are also allowed to use UPS, FedEx or another approved carrier.
My suggestion is have the Sheriff in the other county serve him at work.