“Service-of-process rules are intended to satisfy the due process requirement that a defendant be informed of the pendency of an action by the best means available, by methods reasonably calculated to give a defendant actual notice of the proceeding and an opportunity to be heard and to present objections or defenses.” Hill v Frawley, 155 Mich App 611, 613 (1986).
Generally, any legally competent adult who is not a party or an officer of a corporate party may act as a process server. MCR 2.103(A). However, certain types of cases require a specific person to serve process. See MCR 2.108(B)-(D).
“[A] process server who is on the land or premises of another while in the process of attempting, by the most direct route, to serve process upon any of the following: (a) [a]n owner or occupant of the land or premises[;] (b) [a]n agent of the owner or occupant of the land or premises[;] (c) [a] lessee of the land or premises,” is exempt from the prohibition on trespassing set out in MCL 750.552(1). MCL 750.552(2).
A party must show proof of service. MCR 2.104. “Delivery of documents through the electronic-filing system in conformity with [the Michigan Court Rules] . . . is proof of [personal] service under Michigan Court Rules.”1 MCR 1.109(G)(6)(a)(iii). Otherwise, a party may show proof of service by providing:
“(1) written acknowledgment of the receipt of a summons and a copy of the complaint, dated and signed by the person to whom the service is directed or by a person authorized under these rules to receive the service of process;
(2) a certificate stating the facts of service, including the manner, time, date, and place of service, if service is made within the State of Michigan by
(a) a sheriff,
(b) a deputy sheriff or bailiff, if that officer holds office in the county in which the court issuing the process is held,
(c) an appointed court officer,
(d) an attorney for a party; or
(3) a written statement of the facts of service, verified under MCR 1.109(D)(3). The statement shall include the manner, time, date, and place of service, and indicating the process server’s official capacity, if any.
The place of service must be described by giving the address where the service was made or, if the service was not made at a particular address, by another description of the location.” MCR 2.104(A)(1)-(3).
MCL 600.1910(1) provides that “[p]roof of service of process may be made by 1 of the following methods:
(a) Written acknowledgment of the receipt of a summons and a copy of the complaint, dated and signed by the person authorized under this act to receive them.
(b) A certificate, stating the facts of service, if service is made in this state by any of the following:
(i) A sheriff.
(ii) A deputy sheriff, medical examiner, court officer, or constable, or a deputy of any of these officers, if the officers held office in a county in which the court issuing the process is held.
(c) If service is made by any other individual, a written statement of the facts of service, verified by the following statement: ‘I declare under the penalty of perjury that this proof of service has been examined by me and that its contents are true to the best of my information, knowledge, and belief.’.”
The validity of the service is not affected by a party’s failure to file the proof of service. MCR 2.104(B); MCL 600.1910(2).
C.Manner of Service2
The manner of service depends on the entity of defendant. MCR 2.105. The requirements for valid service are set forth as follows3:
•individuals (resident or non resident), MCR 2.105(A);
•individuals (nonresident, minor, defendant for whom a guardian or conservator has been appointed and is acting, individual doing business under an assumed name) and substituted service, MCR 2.105(B);
•partnerships and limited partnerships, MCR 2.105(C);
•private corporations (domestic and foreign), MCR 2.105(D);
•partnership associations and unincorporated voluntary associations, MCR 2.105(E);
•service on an insurer, MCR 2.105(F);
•certain corporations, unincorporated board, or public body, MCR 2.105(G);
•limited liability company, MCR 2.105(H); and
•agent authorized by appointment or by law, MCR 2.105(I)(1).
Generally. A plaintiff may serve process on a resident or nonresident individual by transmitting a document in the e-filing system, MCR 1.109(G), or by personally delivering or sending a summons and a copy of the complaint via “registered or certified mail, return receipt requested, and delivery restricted to the addressee,” MCR 2.105(A)(1)-(2). “By restricting delivery to a specifically identified person, [MCR 2.105(A)] avoids disputes about whether a defendant has deliberately refused service.” Bullington, 293 Mich App at 557 (the plaintiff violated MCR 2.105(A)(2) by failing to attempt service by certified mail without restricting delivery to the defendant).
“Delivery of documents through the electronic-filing system in conformity with [the Michigan Court Rules] is valid and effective personal service . . . .”4 MCR 1.109(G)(6)(a)(iii).
Substituted Service. MCR 2.105(J) addresses when and how substituted service can be made. The court may enter an order permitting substituted service if the plaintiff files a verified motion dated not more than 14 days before it is filed. MCR 2.105(J).
The motion must meet all procedural requirements set forth in MCR 2.105(J)(2). The court may direct a hearing on the motion, but it is not required. MCR 2.105(J)(2). Substituted “[s]ervice of process may not be made . . . before entry of the court’s order permitting it.” MCR 2.105(J)(3).
The order must include all of the information specified in MCR 2.106(C). The court may order substituted service via posting or publication. MCR 2.106(A). See MCR 2.106(D) and MCR 2.106(E) on how to accomplish service via posting or publication.
Service by Mail. “The proper addressing and mailing of a letter creates a legal presumption that it was received. This presumption may be rebutted by evidence, but whether it was [received] is a question for the trier of fact.” Stacey v Sankovich, 19 Mich App 688, 694 (1969).
D.Exemptions from Service and Privileged Persons
Civil process cannot be served:
•“[O]n an elector entitled to vote at an election during the day that election is held. However, if sufficient cause is shown by affidavit to the satisfaction of a judge, that judge may issue a restraining order or authorize the issuance and service or execution of a writ[.]” MCL 600.1831(1).
•“[O]n a person attending a worship meeting of a religious organization that has tax exempt status . . ., on property where the organization normally conducts its worship, or going to or coming from such a meeting within 500 feet of that property. A judge may order service or execution of process notwithstanding this subsection if, to the judge’s satisfaction, sufficient cause is shown by affidavit.” MCL 600.1831(2).
The following persons are privileged from civil process:
•“All persons going to, attending, or returning from, any court proceedings in any action in which their presence is needed . . . if service could not have been made on them had they not gone to, attended, or returned from the proceedings.” MCL 600.1835(1).
•“Any person brought into this state by or after waiver of extradition based on a criminal charge . . . in civil actions arising out of the same facts as the criminal proceedings which he or she is returned to answer until he or she has been convicted in the criminal proceeding, or, if acquitted, until he or she has a reasonable opportunity to return to the state from which he or she came.” MCL 600.1835(2) (only applicable to “service of personal process”).
•“A member of the legislature . . . on a day on which there is a scheduled meeting of the house of which he or she is a member . . . [unless] such process is executed by certified mail, return receipt requested.” MCL 600.1835(3).
E.Defects in Service of Process or Proof of Service
Defects in the service of process are not necessarily fatal to the cause of action. “An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.” MCR 2.105(K)(3); In re Gosnell, 234 Mich App 326, 344 (1999).
A party may challenge the sufficiency of the service or process in a summary disposition5 motion. See MCR 2.116(C)(3). Affidavits, together with any other documentary evidence submitted by the parties, must be considered by the trial court. MCR 2.116(G)(5). All factual disputes for the purpose of deciding the motion are resolved in favor of the nonmoving party. See Jeffrey v Rap American Corp, 448 Mich 178, 184 (1995). If the defendant actually receives service of process within the life of the summons, the fact that the manner of service was improper is not grounds for dismissal. MCR 2.105(K)(3); Hill v Frawley, 155 Mich App 611, 613 (1986). See also Bunner v Blow-Rite Insulation Co, 162 Mich App 669 (1987) (dismissal was not warranted where the defendant was properly served, but under an incorrect name). It is only where there is a failure of service of process that dismissal is warranted. Holliday v Townley, 189 Mich App 424, 425-426 (1991).
MCR 2.116(I)(3) does not require a jury trial to determine whether service of process was sufficient. Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 283 (2007). MCR 2.116(I)(3) permits the court to order an immediate trial for summary motions based on MCR 2.116(C)(1)-(6), or MCR 2.116(C)(7). Where a jury trial has been demanded, and the summary motion is based on MCR 2.116(C)(7), the court must allow a jury trial on issues that include “a right to trial by jury.” MCR 2.116(I)(3).
MCR 2.116(D)(1) “provides that a defendant waives the ability to object to service of process under MCR 2.116(C)(3) unless the objection is raised in the defendant’s first motion or responsive pleading[.]” Al-Shimmari, 477 Mich at 291-293. A general appearance does not waive a challenge to the sufficiency of service of process under MCR 2.116(C)(3). Al-Shimmari, 477 Mich at 293.
“At any time on terms that are just, a court may allow process or proof of service of process to be amended, unless it clearly appears that to do so would materially prejudice the substantive rights of the party against whom the process issued.” MCR 2.102(C). See also MCL 600.1905(3), which contains substantially similar language. “An amendment relates back to the date of the original issuance or service of process unless the court determines that relation back would unfairly prejudice the party against whom the process issued.” MCR 2.102(C).
1 See Section 3.1(B)(2) for more information on electronic-service process.
2 See the Michigan Judicial Institute’s Service of Process Table.
3 “If a rule uses the term registered mail, that term includes the term ‘certified mail’, and the term ‘registered mail, return receipt requested’ includes the term ‘certified mail, return receipt requested.’ However, if certified mail is used, the receipt of mailing must have been postmarked by the post office.” MCR 2.105(L)(1). “If a rule uses the term ‘certified mail’, a postmarked receipt of mailing is not required. Registered mail may be used when a rule requires certified mail.” MCR 2.105(L)(2).
4 See Section 3.1(B)(2) for more information on electronic service process.
5 See Section 4.2 on summary disposition.