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Information for Plaintiffs in Small Claims Cases
Giving Notice of Your Claim and the
Hearing to the Defendant
You
must provide service of process (procedure for giving notice to the
defendant) of your claim to the defendant. If there is more than one defendant
then you must give notice of your claim to each defendant. If you are suing a
married couple, notice must be given to each spouse. The judge cannot give you
a judgment against a defendant who was not given notice.
There are specific steps that must be followed and it is very important that
they be done correctly. If service of process is completed and the defendant
does not answer your claim, the judge can give you a default judgment against
the defendant. If service of process is not completed, or is not completed
correctly, and the defendant does not answer your claim, the judge cannot give
a default judgment and your claim may be dismissed. If your claim is against a
government agency, service of process must be made on the government agency
that is named as a defendant and, by certified or registered mail, on the Idaho
Attorney General.
The court clerk will provide the papers to be served on the defendant. These
include a copy of your claim, a summons, an answer form, and a booklet entitled
Information for Defendants in Small Claims Cases. There are four ways
you can serve process on the defendant, each of which is described below.
Service of process should be completed within 30 days after you file your
claim. If service is not completed within 30 days, your claim may be dismissed
for lack of service.
If your claim is dismissed for lack of service you can reopen your case by
refiling your claim. If you reopen your case within six months after it was
dismissed for lack of service, you won’t have to pay another filing fee.
Service (Notice) by Certified Mail – In most counties you can ask the
court clerk so serve the defendant by certified mail. If you want the defendant
served by certified mail you must pay the court clerk for the cost of mailing.
If you win your case, the judge will order the defendant to pay you for the cost
of mailing.
The court clerk will mail the papers to the defendant by certified mail/return
receipt requested. The defendant must sign the return receipt to receive the
mail. The post office will mail the signed receipt back to the court clerk.
Service of process is complete when the court clerk receives the receipt signed
by the defendant. If the clerk does not receive the receipt signed by the
defendant, you will have to try a different way to serve process. Service of
process by certified mail costs less than service by the sheriff’s office or by
a private process server but is more often not completed because the defendant
does not sign the receipt.
If you want to serve process by certified mail, you must mark the appropriate
space near the bottom of your claim. You should call the court clerk’s office a
couple of weeks after you filed your claim and ask whether the return receipt
has been signed by the defendant. If you call a couple of weeks after you filed
the claim and service of process has not been completed, you will still have a
couple of weeks to try a different method to serve process.
Service (Notice) by the Sheriff’s Office – In some counties you can ask
the county sheriff’s office to serve process on the defendant. The sheriff’s
office will charge a service fee. In some counties this fee is
non-refundable—it will not be returned to you for any reason. In some counties
the sheriff’s office will return a portion of the fee if the sheriff was not
able to deliver the papers. If you win your case, the judge will order the
defendant to pay you for the cost of the service fee.
In some counties the court clerk will collect the fee for the sheriff and give
the sheriff’s office the fee and papers to be served on the defendant. In some
counties the court clerk will give you the papers to be served and you will
have to deliver the papers and sheriff’s office fee to the sheriff’s office. If
the clerk gives you the papers to take to the sheriff’s office, you should go
there promptly so the papers can be served within the 30-day time limit.
You must provide information that describes the defendant and where the
defendant can be found. The sheriff’s office will not investigate to find the
defendant for you. This may include:
·
The defendant’s sex, race, age,
height, weight, hair color, birth date or age
·
The address and phone number
where the defendant lives
·
The name of the defendant’s
spouse or other persons over the age of 18 who live at the defendant’s home
·
The name, address, and phone
number of the place where the defendant works
·
If the place where the
defendant lives or works does not have a street number, then directions to
locate the place where the defendant lives or works—a route number or box
number is not enough
·
The make, model, year, and/or
license number of the defendant’s car
If you filed your claim in one county and the defendant is to be served in
another county, you must go to the sheriff’s office in the county where the
defendant is to be served to arrange for service of process.
To serve process, the papers must be delivered to the defendant or to a person
at least 18 years old at the place where the defendant lives. The sheriff’s
office will prepare a “Sheriff’s Return of Service.” If the sheriff was able to
deliver the papers, the return will state that process was served and when and
how it was served. If the sheriff’s office was not able to deliver the papers,
the return will say “not found” or “unable to locate.”
In some counties the sheriff’s office will file the return with the court
clerk. In some counties the sheriff’s office will give the return to you and
you will have to file it with the court clerk in the county where you filed
your claim. If the sheriff’s office gives the return to you to file, you should
file it promptly so that service of process can be complete within 30 days
after your claim was filed.
Service of process is not complete until the court clerk receives a Sheriff’s
Return of Service that says the papers were delivered to the defendant or to a
person over the age of 18 at the place where the defendant lives.
Service (Notice) by a Private Process Server – You can ask a private
process server to serve process on the defendant. You can find private process
servers in the phone book. The process server will charge you a fee. If you win
your case, the judge will require the defendant to pay you for any reasonable
costs for service of process.
If you want to use a private process server, the clerk will give you the papers
for service of process. You should contact the process server promptly so that
the papers can be served promptly.
The process server will ask you for information that describes the defendant
and where the defendant can be found—much like the sheriff’s office does. If
you do not know where the defendant can be found, some process serves provide
investigative services. The process server will charge more to find the
defendant for you.
If you filed your claim in one county and the defendant is to be served in
another county, you will probably need to go to a process server in the county
where the defendant is to be served to arrange for service of process. There
are some process servers that work in more than one county but they may charge
more depending on how far they have to travel to serve process on the
defendant.
To serve process, the papers must be delivered to the defendant in person or to
a person at least 18 years old at the place where the defendant lives. The
process server must prepare an “Affidavit of Service.” If the process server
was able to deliver the papers the affidavit must state that process was served
and when and how it was served. The affidavit must be signed by the process
server and notarized. If the process server was not able to deliver the papers,
the return will say “not found” or “unable to locate.”
Some process servers will file the affidavit with the court clerk. Some process
servers will give the affidavit to you and you will have to file it with the
court clerk in the county where you filed your claim. If the process server
gives the affidavit to you to file, you should file it promptly so that service
of process can be complete within 30 days after your claim was filed.
Service of process is not complete until the court clerk receives a completed
Affidavit of Service that says the papers were delivered to the defendant or to
a person over the age of 18 at the place where the defendant lives.
Service (Notice) by Any Person Not a Party and at Least 18 Years Old –
You can ask any person who is at least 18 years old and not a party to your
case to serve process on the defendant. The person who is going to serve
process cannot be a plaintiff or defendant in your case and cannot be an
employee of the plaintiff or defendant in your case. A friend or relative may
serve the papers but it is usually better to have a neutral person do it. If a
question is raised later about whether service of process was properly
completed, the person who served process may have to testify about it in court
and a friend or relative may appear to be a biased witness.
If you want to ask a process server (another person to
serve process on the defendant), the clerk will give you the papers for service
of process. The process server must deliver the papers to the defendant
in person or to a person at least 18 years old at the place where the defendant
lives. If the process server uses the second option, the process server must
get the name of the person the papers were delivered to, verify that the person
is over 18, and verify that the place the papers were delivered to is the place
where the defendant lives—verification can be made by asking the person the
papers are delivered to. The papers should be served on the defendant as soon
as possible so that service of process can be complete within 30 days after
your claim was filed.
The process server must prepare an “Affidavit of Service.” In most counties you
can get a form from the court clerk. If the process server was able to deliver
the papers the affidavit must state that process was served and when and how it
was served. The affidavit must also state that the process server is at least
18 year old, not a party to the case, and not an
employee of a party to the case. The affidavit must be typewritten or printed
in black ink. The affidavit must include the same caption (name of the
court, names of the plaintiffs and defendants, and case number) as your claim.
The process server must sign the affidavit in front of a notary and have the
notary sign and seal the affidavit. In some counties there is a notary at the
court clerk’s office. Either you or the process server must file the completed
form as soon as possible after the papers were served so that service of
process can be complete within 30 days after your claim was filed.
Service of process is not complete until the court clerk receives a completed
Affidavit of Service that says the papers were delivered to the defendant or to
a person over the age of 18 at the place where the defendant lives.
