A court may adjudicate a dispute between parties only if it has jurisdiction over them. 

Jurisdiction over the defendant may be accomplished through service of process, which may occur in a number of different ways – and this is the subject of this week’s column. Obtaining service of process on the defendant is a process, the initiation of which lies upon the plaintiff (party initiating the lawsuit). It may or may not involve the work of law enforcement personnel. Service of process primarily involves delivering the summons and complaint to the defendant personally, but it may also be done in alternative manners, as may be authorized by statute or court rule.

A defendant may agree to voluntarily submit himself to the court’s jurisdiction by admitting service of process and waiving the necessity for actual service of process. For this to be effective, the defendant must sign a document that constitutes an “appearance.” This method is frequently used in cases where the parties have reached an agreed-upon result or settlement, such as in uncontested divorce proceedings. 

Absent an admission by the defendant, the most reliable form of service of process is personal service on the defendant. If the defendant cannot be found conveniently, the process (i.e., the summons and complaint) may be left with a family member over the age of fourteen at the defendant’s dwelling. While service of process may be accomplished by an official such as a sheriff, constable or marshal, it may also be accomplished by an elector or registered voter in South Dakota so long as the process server is not a party to the lawsuit. In federal court, the requirements for a process server are a bit less restrictive – service may be made by any person “at least 18 years old and not a party.” 

Looming overhead is the matter of time. A Plaintiff’s ability to pursue a lawsuit may be curtailed by the appropriate statute of limitations. Some limitations are shorter than others. Generally speaking, it is necessary for the Plaintiff to obtain service of process on the Defendant before the limitations period expires. 

Service of process by registered or certified mail is permitted in some states for suits brought in state court. In South Dakota, such service is authorized only in Small Claims Court which currently has jurisdiction to handle claims not exceeding $12,000.

In some cases, it may be necessary to obtain service of process by publication. Generally, this is invoked only as a last resort where “the [defendant] cannot, after due diligence, be found within the state,” and only with express permission from the Court. But, even if a judge has authorized service by publication, the plaintiff has an ongoing, affirmative duty to secure personal service if he obtains new information as to the defendant’s whereabouts. The South Dakota Supreme Court has not hesitated to set aside a judgment obtained after service by publication where the plaintiff discovered new information that would have allowed him to obtain personal service on the defendant. 

What about claims by the Defendant against the Plaintiff? Plaintiffs should be aware of the fact that by filing a lawsuit, they are indeed subjecting themselves to the possibility that the Defendant may file a Counterclaim against them. By filing suit with the Court, the plaintiff submits himself to personal jurisdiction. If this occurs, there is no need for separate act of “service of process” to take place on the Plaintiff. A Counterclaim may typically be filed with the Court, and service secured upon the Plaintiff, through ordinary mail. Furthermore, a Counterclaim may exceed the value of Plaintiff’s original claim.

Authorities: SDCL 15-6-4 (c) & (e); SDCL 15-39-45.1; SDCL 15-39-53; FR 4(c); SDCL 15-9-7; Nolan v. Nolan, 490 N.W.2d 517 (SD 1992).

Note: In regard to the preparation of this week’s column, the author would like to thank Claudia Baron for her assistance and input

Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at rogermbaron@gmail.com .

About this column: Roger Baron is a former professor of Law for 40 years. This Column is designed to provide readers with similar summaries, in non-legalese language, and to also provide a forum for other observations (notes) about relevant legal issues.

Roger Baron is a guest columnist for the Rapid City Post. Opinions expressed may not necessarily represent the views of the Rapid City Post, its affiliates, or advertisers.