No injury lawsuit can proceed until service of process has been properly made on the defendant. That means defendant has been properly notified of the litigation. Service of process is the way in which courts establish personal jurisdiction, which is required in every lawsuit. In fact, it is only after a plaintiff obtains proper service on defendant that the court obtains the jurisdiction over defendant to impose an enforceable judgment of liability and damages.
So it’s a critical step. But it’s not always simple one, and it can be the source of major delays – or even dismissals – if it isn’t done right.
Rules for service of process are outlined in Rule 4 of Alabama Rules of Civil Procedure. This provision outlines the fact that the service of summons and complaint has to be made to defendant within 120 days of filing the complaint, or else the court may dismiss the action without prejudice. The only exception would be plaintiff could show good cause for the failure or if plaintiff is granted an extension. There are stipulations for who may accept the summons, who may not and where it must take place.
In the recent Alabama Court of Civil Appeals case of Edwards v. Hanger, plaintiff was injured in a car accident that occurred Sept. 23rd, 2012. On Sept. 8, 2014 – just two weeks shy of the statute of limitations for personal injury cases in Alabama – plaintiff filed a lawsuit. He named as defendants the driver of the vehicle, alleging negligence, and the owner of the vehicle, alleging negligent entrustment of the vehicle.
Service of process on both defendants was attempted, but a return of non-service was filed the on Oct. 15th. In February, trial court indicated it would grant 30 days for service of process or else the claim would be dismissed. Plaintiff requested more time, saying he had hired a special process server to get the job done, but he still wasn’t sure it would be completed by the deadline. Trial court denied that motion. Service of process was completed on the driver within the deadline, but not the vehicle owner.
In May, trial court dismissed the entire action for want of prosecution. That effectively would have left car accident plaintiff without option because it was already past the two-year statute of limitation. He could not re-file the case. There was a request for reconsideration, but it was denied. An appeal was made to the Alabama Court of Civil Appeals.
Plaintiff conceded action against the vehicle owner was properly dismissed, but argued the case against the other driver should be allowed to proceed. Appellate court agreed. Plaintiff had filed the case just within the 30-day window. Although he did not request a demand for default judgment withing a month of the date defendant’s answer to that complaint was due, this was not in violation of any court order and it didn’t constitute a willful default or delay.
Therefore, trial court’s decision to dismiss was reversed and the case remanded for further proceedings.
Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.
Edwards v. Hanger, Nov. 13, 2015, Alabama Court of Civil Appeals
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