Who is Authorized to be a Process Server in Michigan

Curious about who can become a process server in Michigan? Michigan law allows private citizens to serve civil process, as long as they are at least 18 years of age. However, the vast majority of process servers are employees of private investigative firms or serve process as part of their job responsibilities, such as for legal assistants or court clerks. Not surprisingly, many of our Michigan process servers are private investigators and former law enforcement officers. At this point, Michigan does not specifically require any certifications or special registrations in order to serve process. The key consideration is that they must be at least 18 years of age. However , the very nature of the process serving job lends itself to pre-employment background checks. We strongly recommend that employing agencies do their due diligence when it comes to vetting process servers – particularly those who may be handling sensitive criminal legal matters such as felony criminal cases or family law cases involving children. Beyond the aforementioned, all process servers must ensure they are properly informed regarding local Michigan rules and court rules pertaining to service of process.

Responsibilities Relating to Serving Process

An integral part of the civil litigation process in Michigan is the service of legal process. The service of process upon a defendant allows the Michigan Circuit Court the power to resolve disputes between two or more parties involved in the case. Initially, the plaintiff makes sure that the defendant receives a complaint establishing the facts of the case as well as the relief sought and then files a copy of the complaint with the Circuit Court. The Circuit Clerk will then assign a case number and set forth the preliminary dates such as a scheduling hearing or mediation. However, none of this is possible without the service of process. According to Michigan Rule Court 2.105, service of process refers to the delivery of the complaint and summons to the defendant via several methods: personal service under MCR 2.105, service by mail under MCR 2.107(A)(3), or in some cases, service by publication under MCR 2.106 and 2.105. In any event, plaintiff has the responsibility for arranging for service of process once the summons and complaint are prepared. Process can be served on the basis of a "reasonable expectation" that service can be obtained (Russell v Harbaugh 258 Mich App 635). The appointed process server is required confirm that the summons and complaint are properly filed with the Michigan Circuit Court and that the correct form of service is delivered appropriately. Not all process servers are attorneys but are appointed by the Circuit Court to serve as intermediate agents between plaintiff and defendants in the civil litigation process. Not only are process servers responsible for following legal and procedural norms in Michigan, but they also have ethical obligations to both plaintiff, defendant and the court. A process server should avoid ex parte contacts with either party. A process server can be asked to supply legally relevant information about a case but cannot provide any information regarding the state of the litigation. If a process server is approached by a party, that individual should be referred to his or her attorney. A process server should follow the letter of the law, basing actions on sound legal advice rather than speculation or conjecture. A process server who breaks the law may be subject to court sanction for contempt (MCR 8.115).

Proper Procedure for Serving Process in Michigan

As with other states, there are required legal procedures that must be followed for the efficient and accurate service of process. The Michigan Court Rules govern the requirements for service process, and there are three persons who can legally conduct the service of process: the Sheriff, a Sheriff Freelancer, or a processing service agency. The Sheriff is a county officer elected to serve a four-year term. As an elected official, the Sheriff cannot be removed from office unless by election or impeachment. Freelancers are appointed by the County Sheriff to work as freelance process servers and are not employed by the county. A freelancing Sheriff’s allows Sheriff’s to supervise and verify the service of process by freelancers. The benefits of employment of a Sheriff’s include more competitive pricing over other service of process agencies. The Court Rules define the Legal Requirements for Service of Process as: Service of process must be in hand and cannot be accomplished by mail or publication alone. If service fails, subsequent service can be by regular mail. Service cannot occur when the defendant is out of the state. Any member of the household or business can be served. If no one is home, service can be completed to the individual at his/her regular place of business. Service on any partner within the partnership will be sufficient to bind all other partners. Written acceptance can be used for service. Personal service under the Act is required for legal actions upon minors. A Special Process Server list the persons who can serve process in each state. Michigan allows for service of process by email, electronic transmission and faxing. In all instances, an affidavit of service must be created and filed with the court.

Common Process Serving Issues

The challenge of process servers, especially when they are hired to serve someone who may be doing everything they can to avoid the process server, is greater than in other states. It’s not that Michigan has harsher rules – quite the contrary. Rather, it’s that some people in Michigan have a bachelor’s degree in evasion and when presented with process, have been known to use it to its fullest.
Oftentimes the person being served simply doesn’t want to be found. This is towards the end of the litigation process where a lot of times the owner of the property has already moved or the relationship between the parties has broken down to the extent that they will do anything to avoid the person serving them the papers. Now, does it happen in the beginning of the case? Sure, but this has become more and more common as costs increase and consumer protections continue to erode. People will do anything to obstruct service.
Another avenue of obstruction is through legal obstacles that prevent service from being made. For example, if the asset in question is held under a trust, the person serving will run into complexities such as the requirements for service on a Michigan LLC. This shouldn’t become an obstacle to any successful Michigan process server. When confronted with an asset being held under a Michigan LLC, for example, the server should determine who the manager of the Michigan LLC is. Michigan does not require that LLC’s maintain a registered agent for process, meaning that it is up to the member managers to designate that person. Once the member manager is determined then you can have the LLC process served and the Michigan process server can serve the manager according to agency rules.

Consequences of Improper Service of Process

The implications of improper service are significant in Michigan. When the service of process is not conducted according to the law or the rules set forth by the Michigan Court Rules (MCR), it may result in a variety of complications and potential legal consequences.
In many cases, improper service can lead to a delay in the proceedings, as Judge Borrello of the U.S. District Court for the Eastern District of Michigan stated, "in the case of improper service of process, a defendant may move to quash the service, thus complaining that the plaintiff has not properly invoked the court’s jurisdiction and that the improper service may delay the litigation while the court sorts the matters out." The result of the time delays can be especially damaging to a case as it "can be extremely prejudicial to the plaintiff, particularly in personal injury actions." In Michigan’s Supreme Court case of Williams v. League General Ins. Co., 427 Mich. 393 (1986), the court argued that "[w]e take seriously the observation that lapses of a court’s procedures to effectuate a plaintiff’s cause of action ought not to defeat the plaintiff’s action. We also take seriously, however, the observation that the requirements of those rules are there for a reason and that pervasively intervening judicially-created doctrines… ought not to be used to [conflate] a narrow purpose of procedural rules into a civil procedure-wide ineffable transcendent principle of the Ninth Commandment."
The MCR rules for service must be adhered to exactly during civil proceedings in both state and federal courts in Michigan. When service of process is not executed according to the law or rules, it opens up the door for a defendant to ask the court to dismiss the plaintiff’s case for lack of personal jurisdiction . Whether a court grants or denies the motion will come down to discretion and case-by-case circumstances. In Hawkes v. Roman Catholic Bishop of Greensburg, Civil No. 09-1047, 2011 U.S. Dist. LEXIS 18125 (W.D. Pa. Feb. 25, 2011), for example, the court held "[a]lthough the defects in service were technical in nature, consideration of the equities tips slightly in favor of dismissal." However, in Pegotty Inv. Group v. E*Trade Fin. Corp, 605 F. Supp. 2d 448 (S.D.N.Y. 2009), the court ruled "defendants’ service of process on plaintiffs did not comport with the technical requirements of Rule 4 of the Federal Rules of Civil Procedure. Nonetheless, … this Court finds that dismissal is not warranted."
Improper service of process does not have to be the end of the line for your case. The plaintiff may be able to mitigate the shortcomings in regard to the service of process requirement through "substantial compliance," either curing the defects directly or by showing good cause. However, if substantial compliance is impossible then the presiding judge may request that the plaintiff return to the appropriate district court clerk and seek proper service. This is sometimes problematic if the plaintiff is attempting to keep the case in district court because it is thought to be more favorable; therefore an alternative to obtaining new service of process would be seeking an order remanding back to state court and serving process there either in the original form or in the new form.
To avoid having your case dismissed, make sure you have a Michigan process server who is knowledgeable about local laws as well as current Michigan Court Rules. This will save you time, money and aggravation in the long run.

Changes in the Michigan Laws Governing Process Servers

There have been some notable changes in the laws that govern process serving in Michigan. The very first rule change was made as a part of "Public Act 154 of 2011" the "Court Reforms Act". Prior to this act, there were three different statutes that governed the ways in which court documents were served. These were: the Court Rules, the Penal Code and the Revised Judicature Act. The third statute – the RJA – was amended by Public Act 154 of 2011. In this amendment, it was enacted that the RJA is now the single, governing statute of process service in Michigan. This means that the order of authority is now: the RJA, the Court Rules and the Penal code. The RJA contains all of the necessary rules on just how the "sheriff" or private process servers must serve court documents. It is now clearly laid out in the RJA that "serving" is done in one of two ways: First, the documents can be handed directly to the party you are serving. Second, the documents can be given to any adult who is living or working in the building where the parties being served live or work. The Laws governing not only HOW to serve papers, but the specifics about serving the papers, themselves, are now all contained in this single Revised Judicature Act.
Another change that occurred under the Court Reforms Act was that instead of stating "without undue delay" – which is the language that is still used when defining how quickly a sheriff must serve papers, it now states (in the RJA) that subpoenas must be served "as soon as possible". Authors of the changes for the Court Reforms Act believed that this new language – "as soon as possible" – will be easier to interpret and it is also more logical in the eyes of juries and judges (being contrary to the wording "without undue delay"). There are not many requirements ARGUING against process servers or their agents. For example, if you make a genuine effort to serve the court papers, but are unable to serve them "immediately" (as used to be required), it is unlikely that a judge or jury will fault you in this effort.
Likewise, it is now explicitly stated that when serving process, you cannot give a party a ride in your car – this practice is considered intimidating or coercive and (obviously) dangerous. The RJA also now clearly states that you cannot serve the party within 7 days of attending a trial (it is crucial to put this time limit in writing for this purpose).

Questions Frequently Asked Regarding Process Serving in Michigan

Frequently Asked Questions about Michigan Process Servers
How much do process servers in Michigan charge?
Process servers are highly skilled in the art of locating, tracking, and delivering legal documents. Their fees are quite reasonable when you consider the cost of an attorney for the same job. While at the low end of the scale, a simple service may be accomplished for as little as $25. However, this is usually the base amount charged by a beginner process server. The average fee depends on the time that the server takes to locate the defendant. Most jobs end up costing between $50 and $75.
Are process servers required to have a license in Michigan?
The short answer to whether or not process servers need a license in Michigan is no. In fact, most states don’t require process server licensing. However, some cities such as Detroit have local ordinances requiring that process servers register with the City, while others such as Traverse City offer local certification programs that many process servers choose to join. Registration helps regulate the industry, and it also helps ensure that process servers follow the rules because failure to follow the rules could result in revocation of their certification .
What are the bad signs that your process server is just another bad process server?
License and certification are two very important pieces of information anyone hiring a process server should look for before hiring one. The problem with hiring someone who is not licensed is that they are not bonded or insured. The main reason you hire a process server is to avoid liability. With little knowledge or expertise, the risk of the case being dismissed grows with each non-compliance violation committed.
Another bad sign is availability. Many process servers work full time at other work outside of process serving. Even though process servers need to maintain flexible schedules to meet the needs of the clients, I recommend only hiring those who focus solely on process serving. A cheap price usually means the lowest quality and bad service.
Last but not least, make sure to check with your process server about recommended court filing and service procedures. For example, Michigan requires immediate filing of proofs of service with the county clerk within 10 days of being served. However, not all Michigan process servers do this which can result in case dismissal if left unfiled or late filed.