Got a question about the law? Some issue been haunting you, and you really want to know the answer? Then you’ve found the right place. Here, real people ask questions and attorney Steven Shelton finds the answers.
Remember: this information is generalized and for educational purposes only; it does not constitute legal advice. Before taking any course of action regarding the law, you should contact a lawyer. Each situation is unique, and competent legal advice cannot be given without all of the details, many of which may be confidential.
I found out from a friend of mine that a guy I used to know is suing me. I haven’t received the papers yet, and I have had a couple of people tell me that I should just try to avoid being served because if the guy can’t serve me, he can’t sue me. Is this true?
Steven Shelton responds:
It is true that if the plaintiff never serves you, the case will be dismissed. This doesn’t mean that it’s a good idea to dodge service of process. In fact, it’s usually a tremendously bad idea to do so.
In Michigan, a plaintiff who files a case has 91 days to have the Summons and Complaint (the documents that initiate a lawsuit) delivered on the defendant in accordance with the court rules. (This is known as “service of process”.) If this is not accomplished within this time period, the case is automatically dismissed without prejudice (meaning that the plaintiff can simply refile it).
At any time within that time period, however, the plaintiff can petition the court to issue a second summons that is good for a longer period (usually about a year). All the plaintiff has to show to obtain this second summons is that she has made a reasonable effort to serve the defendant and that the attempts have been unsuccessful.
This may lead you to believe that you can still avoid being sued if you can simply dodge the process server for the longer period of time. Any such belief would be incorrect; the courts have been around for several hundred years and during that time such ploys have been tried countless times. Not surprisingly, the courts have devised ways of dealing with this problem.
The most common method of dealing with a defendant who is dodging service of process is to obtain “alternative service”. This type of service doesn’t require that the defendant actually receive the documents at all, and is fairly easy to obtain by a plaintiff upon a showing that good faith efforts to serve the defendant have failed. Depending on the order issued by the judge, the summons and complaint can be taped to the defendant’s front door, sent through regular First Class mail, or even published in the local newspaper or posted at the court house. All that the court will require to show proof that you were served (called, oddly enough, “proof of service”) is the process server’s affidavit that he complied with the court’s instructions on how to accomplish alternative service. And, when alternative service is accomplished, the regular court rules still apply: you have 28 days to respond, and if you don’t then a judgment will enter against you. This could happen even if you never actually saw the summons and complaint or even knew about the alternative service.
So, unless you want to possibly find yourself having to pay on a judgment that you had no opportunity to defend against, it’s probably best to not dodge service of process. You will be much better off defending your case or negotiating a reasonable settlement with the plaintiff.
Steven Shelton is a Michigan attorney in private practice. Got a question for “Ask a Lawyer”? Ask it here!