Return of Service and Challenges to Service
Under Florida law, “[t]he return of service is the instrument a court relies on to determine whether jurisdiction over an individual has been established.” Koster v. Sullivan, 160 So. 3d 385, 388 (Fla. 2015). In order to comply with due process requirements, plaintiffs must provide notice to defendants that a lawsuit has been filed against them by serving them with a copy of the lawsuit. The return of service is the document prepared by a process server, which indicates to the court whether or not the defendant was served.
Issues can arise when a defendant challenges a return of service as defective for whatever reason. For example, the defendant might claim that the return is defective because it contains a misspelling or misnomer of their name. This article discusses which party carries the burden of proof for such challenges and the legal standard applied by courts to resolve them.
“While a plaintiff bears the ultimate burden of proving valid service of process, a ‘return of service that is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.’” Friedman v. Schiano, 777 F. App’x 324, 331 (11th Cir. 2019) (quotation omitted) (affirming trial court’s order refusing to set aside a default judgment where the defendant alleged improper service under Florida law).
“‘Regular on its face’ means the return of service attests to all the information required by the service statute.” Friedman, 777 F. App’x at 331. The service statute is found at Fla. Stat. § 48.21, which requires a return of service to:
- the date and time when the process server received the pleadings;
- the date and time when it is served;
- the manner of service; and
- the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person;
The heightened clear and convincing standard for challenging service is necessary since “[t]o permit a defendant to impeach a summons by simply denying service would create chaos in the judicial system.” Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla. 4th DCA 1983). As such, “the affirmative testimony of the official process server acting in the regular routine of duty without a motive to misrepresent must be preferred to the negative evidence of one claiming not to have been served ….” Id. (emphasis added). Consequently, “[i]rregularities in a writ or other process, where they do not prejudice a defendant, will not invalidate the service.” Buttigieg v. Prunetti, 610 So. 2d 667, 669 (Fla. 4th DCA 1992).
As long as “the purpose of service of process, i.e., to give a defendant proper notice that she is answerable to a plaintiff’s claim, to advise her of the nature of that claim and to afford the defendant an opportunity to defend against it” is met, service is proper. Buttigieg, 610 So. 2d at 669. See e.g., Dep’t of Revenue ex rel. Williams v. Wright, 813 So. 2d 989, 992 (Fla. 2d DCA 2002) (where there was no confusion as to who the defendant was, a defect in the name on the summons should not invalidate service); Popescu v. JP Morgan Chase Bank, NA, 162 So. 3d 10, 11 (Fla. 4th DCA 2014) (where defendant was served, “the defect in appellant’s proper legal name was not sufficient to vitiate process served ….”); Veigle v. St. Cloud Marine, Inc., 818 So. 2d 695, 696 (Fla. 5th DCA 2002) (affirming judgment against defendant that was served but whose name was misspelled).