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Right to Service - For Plaintiffs Only?

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So after yet another bleary-eyed exhausting day and night of reading threads, researching, revising my Affirmative Defenses to add to my Answer in a case involving a JDB suing for Breach of Contract, Account Stated, Open Book Account, and Indebtedness, I'd like to step away from all of that for a moment to ask a serious question about Service.  

 

Is it fair to say that the right to Service, in actual fact, appears to benefit no one but the Plaintiff?  I have a case dating to last year in which I was never, ever served anything by the Plaintiff, yet the case was allowed to go to trial.  Everyone tells me that I waived my right to Service of the complaint by answering it (after finding out about it through a third party), but that it was also the best thing I could have done because otherwise I'd have faced a default judgment.  Fair enough, I suppose (though still pretty shady).  However as I understand it, even if I had somehow been able to file a motion to dismiss for lack of service prior to filing my Answer, it would have had to have been in the form of a demurrer in California, and the judge would most likely have simply given the Plaintiff a heads up and another 30 days to serve.  So what's the point of setting a deadline for Service when it comes to the Plaintiff, if they're just going to be given extensions?

 

In a more recent case, I was served, but it was a full week after the 30 day deadline.  Again, if I was to file a motion about it, all I'd be doing is tying up my own time for getting in the Answer.  And from what I hear on the site, if I did miss the deadline by even a day, "Holy Beejeebus, your goose is cooked now man, you blew it!"

 

Am I wrong about this or is there a serious double-standard inherent in the system when it comes to the issue of service and proof thereof?

 

Curious and frustrated.

 

 

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You can say it's a weakness in the system, the reason it's so apparent to you is because you are dealing with a bottom feeder that will take advantage of anything to get one over on a defendant. On the flipside of it, there are plenty of named defendants out there who duck service left and right and take advantage of the system on that side.

 

Anyhow, down the line, you'll have the opportunity to exact retribution on them when the time comes to subpoena the CCP 96 declarant, you'll use service against them.

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Guest usctrojanalum

the point of service is that both parties have notice of the pending action, so long as the defendant knows a lawsuit is pending against him then the defendant is not prejudiced in anyway. not every lawsuit is going to be served by the letter of the law, but if the defendant still receive notice of the lawsuit the intent of the statute has still been met, no?

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First off, for the service that was done a week late, you file a motion with the court (along with the service papers that shows when you were served) and demand that you get one extra week to file you answer (in other words, you get the full whatever number of days rather than the number of days minus 1 week).

As for the system of service itself, like any other human institution, there are going to be flaws. The system recognizes it and hence, it follows the rule of "No harm, no foul". All service is suppose to do is inform you that there is a case against you. In both cases, by filing an answer, you knew that said case has been filed against you. Since there was really no harm against you, the courts do not bother with the foul.

Now lets say a default judgement was entered against you. If you can prove service was not effected, then you can vacate that judgement and force the plaintiff to go back to the service step and start over. At that point, the court will see that you were harmed and will correct the foul (or at least should).

The only thing service violations are good for is stepping the plaintiff back in the process if the process has gone far enough to do so and making the plaintiff think carefully. Otherwise, there are better ways to stop the plaintiff. If you do success in getting the case dismissed for service violations, the best you can get is a dismissal without prejudice which mean the plaintiff can come at you again. If you go to trial, you can possibly win and stop the plaintiff in their tracks permanently.

Therefore, follow the same guideline as the court. If you were not harmed, then don't bother bringing up the foul.

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Is it fair to say that the right to Service, in actual fact, appears to benefit no one but the Plaintiff?  I have a case dating to last year in which I was never, ever served anything by the Plaintiff, yet the case was allowed to go to trial.  Everyone tells me that I waived my right to Service of the complaint by answering it (after finding out about it through a third party), but that it was also the best thing I could have done because otherwise I'd have faced a default judgment. 

 

No it isn't fair or right to say that it only benefits the Plaintiff.  Once you answered the lawsuit you acknowledged to the court that you had knowledge of the suit and wished to participate in litigation.  Therefore no personal service was necessary at that point you accepted service via your answer.  

 

If they never served you there would have been no trial.  If the defendant cannot be served then the case is dismissed after a period of time for want of prosecution.  You jumped the gun by answering and made their job easier.  If there was a suit against me but no service I would sit back and watch the case file remotely to ensure they did not use sewer service or an alternate legal means of service in my state.  If it never happened and the case was dismissed for lack of prosecution:  WIN for me.  If they do serve me I defend.  If they use sewer service I get it set aside for improper service and then sue for the FDCPA violation.

 

All you did by answering was make their job easier.

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California has "alternate service" available after attempting the normal service process. So ignoring the summons does not always mean a dismissal of the claim.

It is always to your advantage to answer and fight any claims against you. If you know of the lawsuit defend it. If a judgment is obtained without proper service, you ca vacate it, but it puts you back at the stage of answering.

The court is a court of law, not a court of fairness. Learn to use the rules to your advantage, do not expect fairness to be a guide.

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