Personal service of documents on attorney

[Willlyjo]

blog, I would not just hand the documents to the secretary (especially if the secretary says she is not authorized to accept them for the attorney).

I suggest you re-read Rule 21.

And you may wish to contact an attorney in your area of Texas for advice and direction.

Good luck.

Even if the secretary said she/he was not authorized to accept service, there would probably be someone who is authorized. For an Attorney to try and say he did not receive such document, when in fact, someone within his office received it AND it was documented on the affadavit filed with the Court, would be like an Attorney doing a whole lot of nothing for nothing. It is a total waste of time.

Even Federal Rules of Civil Procedure 4.1 allows a document to be placed in a conspicuous place within the Attorney's office if his secretary denies having authorization. Really not a big deal as long as the "Proof of Service" that is filed after such service, indicates exactly how such service was performed.

 

[quincy]

Even if the secretary said she/he was not authorized to accept service, there would probably be someone who is authorized. For an Attorney to try and say he did not receive such document, when in fact, someone within his office received it AND it was documented on the affadavit filed with the Court, would be like an Attorney doing a whole lot of nothing for nothing. It is a total waste of time.

Even Federal Rules of Civil Procedure 4.1 allows a document to be placed in a conspicuous place within the Attorney's office if his secretary denies having authorization. Really not a big deal as long as the "Proof of Service" that is filed after such service, indicates exactly how such service was performed.

I suggest you get any remaining help, blog, from an attorney in your area.

Good luck.

 

[tranquility]

No matter what dance one wants to improvise that can be argued later should be considered proper service, the best answer to the OP's question is that leaving it with the secretary is not safely considered personal service and, at best, the OP should add three days.

 

[tranquility]

Skimming over your cited case, I noticed that the person who was served, was not asked if she was authorized to be served with appropriate documents. Nor did she mention she was authorized to be served with such documents. It was found that she was not authorized. I didn't notice anything that said the lady was the Attorney's personal secretary, so it could very well be that service in the cited case was not proper.

In this case, a secretary to an Attorney is considered to have such authorization, however, a process server or any person serving papers upon an Attorney's secretary, would be better off asking the secretary up front if she is authorized to receive documents for the Attorney. If the secretary says she is not authorized, I would leave the documents and also mail a copy and make sure all the informaton concerning service was documented on the affidavit/proof of service. I have never heard of an Attorney's secretary NOT having such authorization, but that doesn't mean that it isn't possible for a secretary to an Attorney NOT to have such authorization.

Unless one is well versed in a particular area of the law and has read tons of cases there, skimming is not the best way to read a case. There's more too it than that.

See also:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1160925

 

[Willlyjo]

No matter what dance one wants to improvise that can be argued later should be considered proper service, the best answer to the OP's question is that leaving it with the secretary is not safely considered personal service and, at best, the OP should add three days.

Can you explain the adding 3 days part, Tran?

 

[Willlyjo]

Unless one is well versed in a particular area of the law and has read tons of cases there, skimming is not the best way to read a case. There's more too it than that.

See also:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1160925

I agree with you, Tranquility. However, I was not interested in reading the whole case. I was only interested in reading about how court papers were served and why they were considered to be not served properly.

 

[tranquility]

Can you explain the adding 3 days part, Tran?

(Emphasis mine)

RULE 21a. METHODS OF SERVICE
Every notice required by these rules, and every pleading, plea, motion, or other form of request
required to be served under Rule 21, other than the citation to be served upon the filing of a cause
of action and except as otherwise expressly provided in these rules, may be served by delivering a
copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case
may be, either in person or by agent or by courier receipted delivery or by certified or registered
mail, to the party's last known address, or by telephonic document transfer to the recipient's current
telecopier number, or by such other manner as the court in its discretion may direct. Service by mail
shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in
a post office or official depository under the care and custody of the United States Postal Service.
Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed
served on the following day. Whenever a party has the right or is required todo some act within a
prescribed period after the service of a notice or other paper upon him and the notice or paper is
served upon him by mail or by telephonic document transfer, three days shall be added to the
prescribed period. Notice may be served by a party tothe suit, an attorney of record, a sheriff or
constable, or by any other person competent to testify. The party or attorney of record shall certify
to the court compliance with this rule in writing over signature and on the filed instrument. A
certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any other
person showing service of a notice shall be prima facie evidence of the fact of service. Nothing
herein shall preclude any party from offering proof that the notice or instrument was not received,
or, if service was by mail, that it was not received within three days from the date of deposit in a
postoffice or official depository under the care and custody of the United States Postal Service, and
upon so finding, the court may extend the time for taking the action required of such party or grant
such other relief as it deems just. The provisions hereof relating to the method of service of notice
are cumulative of all other methods of service prescribed by these rules.

 

[tranquility]

I agree with you, Tranquility. However, I was not interested in reading the whole case. I was only interested in reading about how court papers were served and why they were considered to be not served properly.

Because the holding is not the important part of the case. For one, they were served properly. The reason why the case is relevant to this discussion is because of dicta and not holding.

"Where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service by leaving a copy of the citation, with petition attached, at the usual place of business of the party to be served, or by delivering same to any one over sixteen years of age at the party's usual place of abode, or in any other manner which will be reasonably effective to give the defendant notice of the suit."

Here, we have service being effected and made in a manner much like in our thread. The court seems to imply that is not "personal service" but in an "other manner".

 

[quincy]

tranquility, you are a very nice and very patient guy.

 

[quincy]

Once again, blog, seek help from an attorney in your area. Good luck.

 

[tranquility]

Civ pro is technical and hard. The OP had a specific question based on careful reading of the law with knowledge of the facts and a clear goal in mind. Ballpark guestimates serve no purpose but to obfuscate. When combined with a stunning lack of comprehension of the issue and a childish use of emoticons over words, I can only conclude quincy's estimation of motives is quite astute.

 

[quincy]

Willlyjo


From In re E.A. and D.A., Children: The presumption of service under Rule 21(a) "is not 'evidence' and it vanishes when opposing evidence is introduced that [a document] was not received."

Under Rule 21(a), I am sure you ran across the part that states nothing "preclude any party from offering proof that the notice or instrument was not received, or, if service by mail, that it was not received within three days...."

And I am also sure you reviewed what "personal service" means in Texas.

Basing advice on what may (or probably didn't) happen to you in California can make your advice inappropriate and just plain wrong for the visitors who come here from a different state with questions relating to the law in that state.

Once again, blog, I recommend you seek help from an attorney in your area of Texas. Good luck.

 

[blog]

A motion I filed Monday and set for hearing required 21 days notice of hearing to other party, and I had 24 days. Service by certified mail or fax adds, as Tranquility noted, an additional 3 days to the 21 day requirement, so I HAD to have it postmarked or fax complete by 5pm that same day.

I faxed the documents on Monday, and on Wednesday the attorney contacted me stating part of the fax was illegible, and to please send another copy. Since a fact issue had been created that a fax error (an in turn defective service) may have occurred, the most prudent option was to not argue about it and hot foot it to the attorneys office and effect personal service.

Which is where Quincy’s advice was useful and appreciated. Instead of handing the documents to someone in the office and walking away, which I might have done, I prepared a Certificate of Service with blanks to filll in date/time/location of personal service and signature of recipient.

The attorney was in the office and signed it, and it was promptly filed.