Can an Individual be Served by Certified Mail in Federal Court?
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Service of process is likely an issue about which many attorneys and parties don’t give much thought; it’s a standard procedure conducted hundreds if not thousands of times a day across the country, and is usually done through a professional process server. However, when attorneys deviate from the standard procedure of sending a lawsuit to a process server and allowing them to effectuate service, whether due to cost or strategic considerations, it is easy to run afoul of the Florida and Federal Rules of Civil Procedure.
For instance, what if a party serves an individual defendant by certified mail? Would that result in proper service? To answer that question, let’s use the following hypothetical: An out-of-state corporation files suit in Florida against several Florida corporations and individuals. Being unable to locate one of the Florida individuals, but knowing that he works out of an office in Florida, the out-of-state corporation sends its complaint and summons by certified mail to the individual at his office address, where the mail is signed for by the individual’s personal secretary. Was service proper in this instance?
To answer that question, one must first look to Rule 4 of the Federal Rules of Civil Procedure, which governs service. Rule 4(e) provides that service of an individual may be made by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Since Rule 4(e)(1) provides that service in federal matters may be made by following state law, one must then turn to the Florida Statutes governing service, as the suit in the example is filed in Florida. Florida Statute §48.031 states in relevant part:
(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.
Section 48.031 further provides that service can be made at a person’s place of employment so long as it is done so in a private area, and the statute requires an employer to allow a process server to conduct the private service if so requested by the process server. Additionally, service can be properly effectuated if the spouse of the person to be served requests service, or, if the individual to be served is operating a sole proprietorship, service may be made by serving the person in charge of the business at the time of service if two attempts to serve the owner have already been made unsuccessfully.
Further, Florida Statute §48.021 states:
(1) All process shall be served by the sheriff of the county where the person to be served is found, except initial nonenforceable civil process, criminal witness subpoenas, and criminal summonses may be served by a special process server appointed by the sheriff as provided for in this section…
(2)(a) The sheriff of each county may, in his or her discretion, establish an approved list of natural persons designated as special process servers. The sheriff shall add to such list the names of those natural persons who have met the requirements provided for in this section. Each natural person whose name has been added to the approved list is subject to annual recertification and reappointment by the sheriff. The sheriff shall prescribe an appropriate form for application for appointment. A reasonable fee for the processing of the application shall be charged.
In analyzing the earlier hypothetical, let’s first turn to all the methods by which the corporation could properly effectuate and perfect service. First, under Rule 4(e)(1), the corporation could effectuate service as provided for under Florida law. Turning to Florida law, the first point to note is that §48.021 requires service to be effectuated by the sheriff of the county in which the individual to be served is located, or by a certified process server. Then, as stated by §48.031(1)(a), the sheriff or the process server may serve the defendant at his place of residence or by leaving the suit with someone 15 years old or older, who lives at the residence, so long as the summons and complaint are identified to the resident as such. In our example, let’s further suppose that the individual to be served is not married and doesn’t operate a sole proprietorship; accordingly, the only other option for service under Florida law would be to serve him personally at his place of work. Notably, none of the available methods of service under Florida law allow for service by certified mail; nor does Florida law allow for service, whether by process server or certified mail, on someone’s business secretary. Accordingly, in our example, service was improper under Florida law, because the wrong method (certified mail) was used and, even if certified mail was a valid form of service, an individual’s secretary cannot be served with a summons and complaint on the individual’s behalf.
Having examined the ways in which the individual could be served under Florida law, and having determined that, in this example, the individual was not properly served under Florida law, one should note that Federal Rule 4(e)(2) provides its own framework for effectuating service. The corporation can properly effectuate service under Rule 4(e)(2) by: 1) delivering a copy of the summons and of the complaint to the individual personally; 2) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or 3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Here, it is important to note that Rule 4 does not provide for a definition of “delivery;” however, it appears that “delivery” is distinct from “mailing,” and that mailing the complaint and summons will not constitute delivery of them. See Macaluso v. N.Y. State Dep’t of Envtl. Conservation, 115 F.R.D. 16 (E.D.N.Y. 1986); see also Fed. R. Civ. P. 4(h)(1)(B) (making distinction between “delivery” and “mailing”).
Given the foregoing parameters of 4(e)(2), it is clear, that certified mail does not comply with the Federal Rules governing service of process, whether the mail was left with the individual’s secretary or the individual himself. First, certified mail is not approved method of delivery under any portion of Rule 4(e)(2). Moreover, in order for the individual to be properly served at his place of business, the summons and complaint would have to be delivered (i.e. not mailed) to him personally, unless he had an authorized agent at his business to accept service of lawsuits, which is unlikely. Accordingly, in our example, service was also improper under the Federal Rules because the wrong method (certified mail) was used and the wrong individual was served.
It’s easy to see how litigants’ attempts at service can be ineffective under the rules of procedure when they, for whatever reason, stray from the usual method of hiring a process server to properly effect service. However, the rules of procedure, both Florida and Federal, are very clear in what will and will not constitute valid service on an individual in Florida. In part of this blog post, we will discuss whether certified mail is a proper method of service on a corporation.