This article will explain an “affidavit of non-service” and how it can potentially impact your small claims case. In short, this document is used to show the court that the process of service was attempted and what occurred when those attempts were unsuccessful.
Defining the Affidavit of Non-Service:
An affidavit of non-service is a legal document promised under oath by the process server, that they could not serve the document to the intended party.
It is sometimes referred to as a Proof of Non-Service or Declaration of Due Diligence.
The purpose of the document is to demonstrate to the court your diligent efforts in attempting to provide the defendant notice of the pending action. The document will detail each of the process server's individual attempts to serve the defendant.
An example of an attempt summary may be “Occupant at the address stated that the intended party for service moved ten months ago, neighbor confirmed.” Or, “Address for business is now vacant.”
Why do I need an Affidavit of Non-Service?
If defendant service goes smoothly, the process server will easily locate the defendant at the address you provided, give them the documents, and file an “Affidavit of Service.”
But it’s not always that simple. If the defendant moves, the process server will not be able to serve them. Sometimes, defendants “evade” service, or try to hide from the process server. The Affidavit of Non-Service documents your effort to notify the defendant of your lawsuit.
After attempting to serve the documents, and the process server deems them undeliverable, an affidavit of non-service can be filed.
What information is included in the Affidavit of Non-Service?
The Affidavit of Non-service will typically includes
- Your case information
- Detailed descriptions of each attempt to serve the defendant
- And the process server's contact information.
How does an Affidavit of Non-Service impact my case?
Once the process server shows efforts were made to try and locate the intended party, the court can take various legal actions. This could mean the case moves forward with a hearing, a judgment is entered against the other party, or the case is dismissed. It depends upon the judge, the attempts, and the court rules handling the case.
An Affidavit of Non-Service alone is not sufficient to move your case forward. However, receiving an Affidavit of Non-Service does not always mean your case stops; it means a little extra work will need to be done.
When filed by itself to the Court, an Affidavit of Non-Service will usually result in either a dismissal or a postponement. But, an Affidavit of Non-Service can be used to request a motion for substituted/alternative service.
A motion for substituted/alternative service is a request to the Court to permit service on the defendant using a method other than personal service. Some of these alternative service methods are:
- Publishing a notice in a newspaper
- Electronically posting a copy to the Court's website
- Serving a co-occupant at the defendant's last known address
- Physically posting a copy to the door of the defendant's last known address.
- First class and/or certified mail
If a motion for substituted/alternative service is granted, then you can serve your defendant using the alternative method you requested. Once the defendant is “served” using a court-approved alternative method, then your case can move forward.
If you are interested in requesting a motion for substituted/alternative service, check out our guide article: How to Request a Motion for Substituted/Alternative Service.
How to file an Affidavit of Non-Service
If you would like to request an affidavit of non-service from Dispute, please contact us.
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