Serving Process on the Business Entity

Fundamentally, the requirements for serving process on a business entity derive from the same constitutional obligations that attach to serving legal process on an individual.  Before there can be deprivation of life, liberty, or property, a defendant must receive notice and be given an opportunity to be heard in a court of law.  This obligation, which arises out of the 5th and 14th amendments to the US Constitution, is reflected in tests all federal and state rules relating to process must meet: 1) is the procedural rule reasonably calculated to provide a party with notice, and 2) is the application of the rule likely to produce actual notice?

Beyond the constitutional obligation, additional sources of authority that further define requirements for process are found in federal and state statutes and rules of procedure, and in case law.  Like service on individual persons, personal service of process is also the gold standard of serving notice.  However, a business entity is a legal fiction of sorts – a legal person but not a corporeal, or flesh and blood person.  How then does one in practice serve this legal entity?

The Federal Rules of Civil Procedure, specifically FRCP 4, lay out the requirements for serving process in federal jurisdictions.  Many state statutes have rules on process that are similar to the federal ones, and in some cases mirror them quite closely.  The FRCP does allow for process according to state rules of procedure, too, so do check the rules of the state where your court has jurisdiction.  As regards business entities, FRCP 4(h) allows for personal service of process on an officer, a managing or general agent, or another agent explicitly authorized by appointment or by law.  By all these methods, serving the person is equivalent to serving the principal, or business entity.

Service on a company officer entails personally serving a company’s chief executive officer, chairman, treasurer or some other officer on the board of a corporation.  For entities like partnerships, LLCs or LLPs, a managing agent or member is analogous.

Additionally, federal and state rules allow for service on an agent explicitly authorized by appointment.  Most of the time, this takes the form of the registered agent.  Indeed, most states require business entities to appoint a registered agent for accepting process in exchange for the privilege of doing business as an entity in that state, and can revoke the right of the company to operate for failure to do so.

An agent authorized by law often takes the form of a state Secretary of State’s office.  When a plaintiff has tried and failed to serve process on a business defendant through that entity’s officer(s) or registered agent, courts will sometimes allow service to be effected by delivering papers on the Secretary of State’s office.

The foregoing is a brief sketch of the particulars for serving legal process on business entities.  It should not be construed as legal counsel or advice.  I have not included a discussion of sole proprietors as legally the person and the business are one and the same.  I hope you find this short outline illuminating.

David Williams, J.D., is Chief Executive Officer of Presto Servers, Inc.  He can be reached by email at dwilliams@prestoservers.com.

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