By Tony Klein, Reprinted from the May 2007 Edition of PSI Newsletter
Failure to Prove Service Results in Dismissal of $7.7 million Case
In April, 2007 I received a memo, indirectly, from a process server that referenced a $7.7 million case that was dismissed because an attorney service signed a proof of service instead of the process server.
Attached to that memo was a copy of an order from a US District Court Judge in Central District who set aside a $7.7 million default judgment because the process server stated at the hearing that a) the signature on the proof of service was not hers, and b) she could not provide accurate details because she did not have her “work order” containing her service notes. The judge also ordered the Plaintiff to notify the court as to who signed the invalid proof of service for possible criminal prosecution for perjury and forgery.
Before rendering its decision to dismiss the case, the court attempted to determine whether proper service had been made. A proof of service signed on behalf of another is not the “best evidence” to prove service. It was later learned that the forwarding service had indeed signed the proof of service, but apparently at the direction and authorization of the company who hired or contracted with the person who actually served the lawsuit.
Notwithstanding the invalidly signed proof of service, the court sought to ascertain whether service had been made through other evidence. It attempted to do so through the process server’s testimony and business records. Unfortunately, the process server testified that she did not have the work order, her notes, or any other record prepared at or near the date of the service. Because the plaintiff could not support the service efforts, the judgment was set aside.
A subsequent $7.7 million complaint was filed in US District Court in San Diego. Sholodge, Inc., the plaintiff in the previous two cases filed a third suit against the forwarding agency, APEX Attorney Services, Incorporated, and the servicing agency, XL Professional Services, Inc., alleging negligence, breach of contract, and negligent and intentional misrepresentation. An answer was filed by APEX with an affirmative defense that XL gave them permission to sign. As of April 27, 2007, XL was in default and had yet to file any response.
Other Illustrated Cases
In the 1970s New York City saw a number of investigations into “sewer services”. The term is used colloquially for when a server tosses the legal documents in the sewer instead of serving them, and then claims that they were served. The FBI seized state court records to create databases of affidavits of service. Some affidavits of service showed that one server purportedly served papers in four boroughs at the same time. Process servers where jailed for this. A local process serving licensing law was enacted, and required that a sequential service journal be maintained under threat of fine or revocation.
A few years ago ABC Legal was requested to serve documents for Lassen County (California) – Department of Child Support Services. One such defendant was purportedly served in Kansas, and a forged proof of service was provided to the court. The defendant found out about it later when his wages were garnished, tax refunds intercepted, and he was denied a loan to buy a house. A default judgment had been entered against him.
When the Lassen County DA refused his request to set aside the judgment, he was forced hire a lawyer and filed a motion to set it aside. He then sued ABC for his legal costs, the damages he incurred in tarnishing his credit, and for exemplary damages due to the forged proof of service.
ABC filed a cross-complaint against Kansas Investigative Services and the process server. They were demurred out of the case after the process server provided a written record attesting that he did not serve the defendant.
The case ultimately settled but its affects are still felt. Although fax filings are permitted in California, Lassen County Superior Court will no longer file anything other than an originally signed proof of service.
A more recent case of fraudulent affidavits came to light in the Maryland.
Kevin Patrick Fitzgerald of Patrick Investigations was sentenced to three years of a ten year sentence, $20,000 in fines and five years of supervision on an earlier conviction for conspiracy, perjury, subornation of perjury and obstruction of justice in connection with a scheme to defraud the District Court of Maryland in Towson. Fitzgerald was convicted of creating and filing hundreds of fraudulent affidavits of service that did not occur. When the defendants failed to show for the court dates, default judgments were obtained.
Quoting from a Maryland Attorney General press release, ”Judge Finifter characterized the Defendant’s actions as, “a major, massive scheme to defraud the District Court, consumers and his own client, . . . resulting in a substantial interference with the administration of justice.”
Impact on Our Profession
Events such as these bring notoriety to the process serving industry and cast a negative image upon our profession. Fortunately, these practices are the exception rather than the rule. Openly discussing them allows us to bring into focus the importance of the professional process server’s responsibility for providing proper proof of service, and maintaining proper process serving records.
The proof of service is a process server’s work product. A valid proof of service is what we receive compensation for. It is the final act in a series of events that our clients and the courts depend upon. When the integrity of the proof of service is compromised, the efforts leading up to it are likewise compromised. Without proper service, and proof thereof, what follows in any civil case may be jeopardized as illustrated by these cases.
An Introspective Look at Our Business Practices
Attorney service businesses have evolved into multi-million dollar enterprises. We all take advantage of technologies that make our businesses more efficient. Those efficiencies may involve a fax machine and a cell phone. For some that’s where it stops. There are some process servers who still type proofs of service, and others who have never typed one. Others are quickly out-pacing those and are developing intra and interstate consortiums and partnerships that transfer documents electronically between themselves, and the courts, and have their servers inputting real time service information from their BlackBerry enabled phones.
The technology has changed, but the manner of service of process, and providing proof of service, has remained relatively unchanged. The courts continue to rely on personal delivery of paper documents. When a dispute arises over whether service was proper, they rely on a document signed by the server, much the same way they have since our country began.
What has changed is the expectation of our clients. Large law firms, equally wired to the world as the more technologically advanced process serving agencies, expect immediate responses. When they send a “hair-on-fire” assignment to a process server, they need continuing status reports. They want the assignments commenced immediately and want proofs of service just as quickly. It does not matter that a subpoena, set for a month and a half from now; is sent out on Thursday evening to be served that same evening on the other side of the state. They want proof of service with a wet signature on their desk by Friday at 9:30 AM. If it is not there, they will be on the phone asking for one.
Maybe it’s a senior partner in a firm who screams at everyone within shouting distance who wants it. Maybe it is the client of the law firm with a short timeline. Maybe someone in the firm sat on the assignment for a week, and now needs rapid action to save his job. Regardless of the reasons, these ever shortening timelines, fueled in part by the instant communication, affect our businesses.
It is within the context of these time expectations that that errors in judgment can be made and shortcuts taken to have the proof of service back to the client, or the court, quickly. Signing the name of a process server, with or without that person’s consent, is a shortcut that is not only improper but illegal as well. This illegality would be compounded should a person sign on behalf of a process server and that signature is attested to by a notary as a sworn statement of that process server. Obviously, these acts must be avoided.
The need for speed is not limited to large firms with high profile or multi-million dollar cases. It happens with large government contract assignments as well. Depending on the jurisdiction, and the negotiated rates, these contracts regularly run well into six figures per year. Since they involve hundreds of process serving assignments, aggressive process serving agencies submit low ball bids that drives the “per service” cost down considerably. These contracts are granted to the lowest, or in many cases the most experienced bidder, and are “adhesion contracts,” a term generally meaning a one-sided “take it or leave it basis.” It is not uncommon to see a requirement for daily pickups, weekly status, and proof of service return within 5 days of service, and a 20% discount for late responses.
What Lessons Can Be Learned From These Incidents and Our Experiences?
First, “sewer” or fraudulent service of process is illegal and should not be countenanced by anyone. Knowledge of such events and failure to report them, or take action to prevent them, implicates all involved. As professionals, we have an obligation to conduct ourselves ethically and to insist that others in our profession do the same.
As a process server, and as an attorney service operator, we owe it to the courts and our clients to provide professional service. We also owe a duty to the public. Our professionalism, our word and our talents are necessary. They are all interlinked, and if any of those fail, it all crumbles. The public is affected, our clients’ cases are affected, and the impact on the court can be substantial.
Second, it is the process server’s responsibility to sign his or her own proof of service. Do not allow anyone to sign it for you no matter what pressure is exerted upon you. Service is the hard part. Providing proof of service is equally challenging, and is as important to the court as the service is. It is the culmination of the entire series of events. If a notarized affidavit is sign by someone other than the actual affiant, it’s a crime for the signer and the notary public. Every process server knows that, or should know that.
A proof of service is challenging because it must be prepared properly and accurately. It must be signed and attested to. Process servers are busy, attorney service operators are busy, and coordinating schedules for signatures can be the ultimate challenge. Once completed, shipping, delivery, or filing the proof takes additional time and effort. A nagging or demanding client for a late proof is not only annoying but a significant impact to any office. Forwarding the proof of service is the final act of the services that we provide, and it holds up the bill. Few clients will pay a bill for service without the proof of service.
Third, maintain records.
Document anything relevant or remotely relevant. The attorney service is responsible for retaining documentation, e-mails, text messages, notes of phone calls, especially when the original instructions change.
Evidence of any service assignment should be reflected in documentation. An attorney service and process server creates that evidence starting when the assignment is received. Some states, such as Texas and Florida, require the server to state when he or she received the process for service.
The attorney service agency receives evidence when first contact is made. It might be a phone message, a fax or e-mail. Keeping a record of that, such as a fax cover sheet or e-mail header, clock-stamps the date and time how and when the assignment was received, and approximates when the service was dispatched. Server’s notes and office entries preserve the record and memory and create evidence of service.
Notes of attempted contact can be part of that evidence. A record of a phone call to the defendant, even if there is no answer, constitutes evidence of due diligence. Saving a company business card or building security sticker, or signing a security guard’s for entry into a building can evidence attempted service The observations of the server – the cars parked around the house, the date and time of attempts at service, names, descriptions, and conversations, and manner of service – all are also evidence of service. Proof of service memorializes of act of the service. Without the server signing a proof of service based upon personal knowledge, the value of it is greatly diminished.
Written records are vital to this process. When made at the time of the event, it is presumed to be more trustworthy than a later recitation or reconstruction of events. Since the record is made by the server, contemporaneously with the service act, it can be relied upon, with proper foundation, as better evidence than the proof of service. It is also invaluable when proving service, especially when the server is unavailable. Testimony of the custodian of record, such as a process manager, could attest to the business practice of the attorney service. The written record of the server, if not maintained by the server alone, may be relied upon to prove service, although it holds far less persuasive value than the server’s personally signed declaration.
A server should also keep independent records of their services, but I would be surprised if more than 20% do.
What Can We Do To Improve Our Profession?
The attorney service is indeed in business to make a profit, but our essential obligation is to the court. If a proof of service is provided to a client and the court, it should be signed by the person who has personal knowledge of the facts they are attesting to. Otherwise, it is a forgery, or a misrepresentation, and subject to both criminal and civil sanction, and could expose the offender to significant liability. Since it is an intentional act, the errors and omissions carrier would likely deny coverage.
Keep written records. Write thorough service notes on work orders, or at least capture relevant facts and observations. Keep a file, and be consistent with record-keeping. If it is necessary to support a service at court, make sure the process server is prepared with copies of the written record. If the process server is unavailable for timely proof of service, prepare a written record, based upon business records, and attach relevant copies to the declaration. If necessary, plan on testifying about the service and bring the original records for the court to review.
This issue will certainly become increasingly relevant as the advancing technologies of electronic or digital signatures and e-notarization become more common. At present, the use of these technologies has not been universally accepted by the courts. Eventually proofs and affidavits of service will be integrated into the process serving profession. The courts must have absolute assurance that these “signed” declarations are indeed that of the person making the statement. The analogy with paper filings, and what an original signature represents, must be consistent. This must be an industry standard.