The Fifth and the Fourteenth Amendments of the U.S. Constitution provide, respectively, that neither the Federal or State Government shall deprive anyone of "life, liberty, or property without due process of law".

Due Process is one of the first concepts they teach in law school, and it is among the most oft-cited principals in the history of our legal system.

Numerous rules and concepts arise from the "Due Process Clauses," one of the main ones being "notice and opportunity to be heard."

For instance, in a civil lawsuit, for collection of money damages, before a case can proceed against a party defendant, there must be strict adherence to rules that ensure the party being sued has been duly notified of the suit, and has had proper opportunity to defend.

This requires that the party being sued is properly served with a summons, notifying them of the suit and what they must do to defend themselves and protect their rights, and a copy of the suit papers that have been filed against them, so as to give them notice of what is being alleged against them, and what is being sought.

Service on an individual requires actual hand delivery, or at minimum a tendering of delivery -- recited in case law as trying to hand it to the defendant by physically extending a hand holding the papers to them, even if they won't take it, which sometimes happens -- or by leaving it at their home with a family member or other person who resides there, who is over the age of 15 years.

Entities that do business in Missouri, like corporations or limited liability companies, are required by law to maintain a registered agent in the state for service of suit papers upon the entity. The identity and physical address of each entity's registered agent is a matter of record that can be accessed on the Secretary of State's website.

After service is effected, the person doing the service -- either a sheriff's deputy or a person otherwise appointed by the court -- fills out a written form, called a "return of service," providing the details of how, when and where service was made, under oath, which is then filed with the court to establish that the case can proceed.

If, after valid service, the defending party does not act to defend within the time and manner provided in the summons, then, and only then, they are deemed to be in default, and a judgment may be entered against them.

Sometimes, the most challenging part of moving forward with a lawsuit is getting the defendant served, and many lawsuits for the collection of money get dismissed due to lack of service in cases, where the defendant has moved, left the area, or otherwise managed to disappear, and they never get served.

Many people who have experience evading the system, and have a history of being sued, are savvy at avoiding service by just not answering the door.

This can lead to a game of cat and mouse.

One way to obtain service is to go to the defendant's work place. And, under Missouri law, an employer is required by statute to make its employees available for service at the work place. The problem with this is that people with a history of being sued also tend to have spotty employment histories, and determining a work place can be challenging.

Another option is for the process server to stake out the defendant's residence by parking down the street, waiting for them to leave, and swooping in to get them when they leave, sometimes by intercepting them on foot, or by parking them in and tendering service at the car window. This is not an uncommon scenario.

Some may say that this all sounds ridiculous, that parties may avoid civil claims by evading the process server, and it shouldn't be allowed.

However, as with so many major constitutional rights, like Due Process, the rules are there for an important reason, and must be strictly applied in every case.

And failure to ensure strict compliance of the rules that ensure notice and opportunity to be heard in every case, falls short of the assurances of Due Process under the Fifth and Fourteenth Amendments.

 

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com