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Serving Papers - VA

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ofield23

Junior Member
What is the name of your state? Virginia
I am an independent contractor and I am suing a company we worked for. They did not pay for work done. He doesn't deny that the work was done, and actually won't answer phone calls, emails, etc.

The funny thing is he is a wedding photographer, so he can't very well hide.

We have his old address (we think it is old), and we mailed summons through certified mail, but he won't pick it up.

The day after we mailed it, I found out that in Virginia anyone over 18 years old not involved with the case can serve papers. My question is the following?
Do we have to talk to the court about redoing the summons if we want to pursue this direction?
If we set up a sting operation with a friend to pretend to be a prospective client and then serve him, is there anything illegal with that?
Is he served once he accepts the papers in hand, touches him, etc.? Does he have to sign anything?
Does the person who served him have to sign an affidavit or something and by when?

I would really appreciate any responses, as this is the first time I am using this forum
 


dcatz

Senior Member
Do we have to talk to the court about redoing the summons if we want to pursue this direction?

You just need an additional copy of what you first received, and you need to serve it in a timely manner.

If we set up a sting operation with a friend . . . is there anything illegal with that?

It’s not illegal, but it seems melodramatic and probably unnecessary, if you have a valid address and adequate time.

Is he served once he accepts the papers in hand, touches him, etc.? Does he have to sign anything?

Personal delivery is preferable but not required (touching him?), and no, he doesn’t have to sign.

Does the person who served him have to sign an affidavit or something and by when?

After service is perfected, a return of service is required. If there is delay in filing, the court may continue the case.

If you review this link, sect. 8.01-287 through and including 8.01-296 explains this and should give any other information needed.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC08001000008000000000000
 

ofield23

Junior Member
Thanks dcatz

Thanks for the response. I appreciate it. I know that setting up a sting operation is melodramatic, but even though we have his address. He is in the process of moving to Florida, and we don't have time to stop by various times and stuff like that (He lives an hour away).

If you have any other input I would appreciate it. Thanks.
 

dcatz

Senior Member
If you read the suggested sections, there is really no additional input other than to say that, if you get a judgment, it appears that you may also have to domesticate it in FL.

You don't say whether you're suing in district or circuit court and whether the address that you have is business or residence or both. I trust that you understand the concept of substituted service, but it's not clear. The link provided addresses all of that, including mail delivery that is not accepted.
 

ofield23

Junior Member
I've read the code, but there are some spots of confusion

Thanks again, but I was wondering if you could clarify where you found information in the Code regarding the idea of mail delivery not being accepted? Maybe I'm not reading it right, but I couldn't find anything like that upon reading this section.

I am filling in the Small Claims division of the General District Court.

The address I have is business and residence (one in the same).\

I am trying to understand the idea of substituted service, but I just don't want to make any mistakes. The way I understand it from reading the Virginia Code is that anyone not an interested party over the age of 18 can serve papers as a substituted service (not on Sundays, Holidays, or coming and going from court). Other than that, I don't know of any other specifics, such as "when is service effected (upon him accepting the papers?)" and what is "acceptance." These are things I am confused about.

Also, if you could, can you explain what Section 8.01-315 is trying to indicate. I'm lost on that one in particular.

Thanks again
 

dcatz

Senior Member
I've read the code, but there are some spots of confusion

I’ll help to the extent that I can, but I’m not VA, and there are some things that I’ve looked for in your statutes and Rules but have yet to find. I’ll make it clear where I’m making an “educated guess”. In those instances, I’d urge you to adopt a conservative approach, until someone directly knowledgeable chimes in.

Sect. 8.01-288 pertains to service of process via mail that is not accepted. Candidly, I’d urge you to follow the course that you’ve charted. It’s conservative and therefore safe, but the section did make me wonder if delivery by mail to a valid address would be sufficient, notwithstanding that the mail was refused. Following that course leaves you vulnerable to a later contention that the address was wrong or no longer valid at the time of mailing and forces you to begin again. That could present several problems, if your defendant has re-located. It’s best to make personal delivery, if you can.

Substituted service is available when personal delivery cannot be made, because the defendant is evading or is otherwise not accessible. Delivery is made to a member of the household over the age of 16. In my state, “due diligence in making personal delivery” to the defendant is a pre-condition to substituted service. That means at least 3 attempts to serve the defendant before giving process to another. I haven’t found that specific requirement in your statutes or Rules but, if your ploy allows personal delivery, it would be better. If you can’t effect personal delivery, I have to suggest that you ask your court whether you must prove due diligence before resorting to substituted service. In a district court case, if personal or substituted service fail, you can also post on the main door of the abode and then mail to the same address at least 10 days prior to seeking a default judgment (sect. 8.01-296(2)(b)). Again, personal delivery would be preferable, if you can manage. Personal delivery doesn’t mean that he physically takes the documents. Tendering them, explaining what they are and putting them before him will suffice, if he declines to accept.

If you don’t have a document which authorizes service to be made on your defendant by delivery of process to a third party (other than a party permitted to receive substituted service), don’t worry about sect. 8.01-315. I doubt that you have such a document. You wouldn’t be asking these questions if you did.
 

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