Litigation: Manner of Service of Process
There are a number of different ways to ensure that each Defendant named in the lawsuit actually receives the Summons and Complaint. The most common method is service by Sheriff. Under North Carolina law, the County Sheriff is appointed to serve civil Defendants with process. The Sheriff will attempt to locate the Defendant and either hand the Summons and Complaint to the Defendant or leave it with a person of suitable age and discretion who lives in the Defendant's household. If the Defendant is a business entity, the Summons and Complaint are delivered to the office of an officer, director, or managing agent of the business. When the Defendant, or the person who accepts the Summons and Complaint on the Defendant's behalf, is served with process, he or she typically signs a white copy of the Summons which is returned to the Clerk of Court to show that service of process is complete.
Service of Process via Sheriff is not the only way to achieve service. One method is mailing it to the Defendant via certified mail, return receipt requested. Another is by delivering the Summons and Complaint to an authorized delivery service such as FedEx or UPS, who will then obtain a receipt of delivery. A final method is by mailing the Summons and Complaint using the Postal Service=s signature confirmation option. From each of these examples, it should be clear that the Rules are designed to ensure the Defendant actually receives the legal documents which contain the allegations made against her and inform her of the right to contest those allegations.
Sometimes, the Defendant has moved or gone out of business. In situations where it is impossible to locate the Defendant for service of process, the Plaintiff must attempt to serve by publishing a notice in the local newspaper. This process is called Notice of Service of Process by Publication. There is a specific procedure for utilizing this option contained in the Rules. The Plaintiff publishes for Three (3) consecutive weeks, a legal notice which contains the caption of the civil action, is addressed to the Defendant, and tells the Defendant to appear and respond to the Plaintiff's action. The Defendant is given Forty (40) days from the first publishing of the Notice in which to respond. If the Defendant fails to do so, the Plaintiff can simply petition the Court for the relief sought. However, Service of Process by Publication is not a favored method of service and is typically used only as a last resort. Therefore, the Plaintiff must make a show the Court that the use was absolutely necessary and that the Plaintiff complied with the letter of the law in doing so. After the Summons and Complaint have been served upon the Defendant according to North Carolina law, it is up to the Defendant to respond to the allegations.