Key Takeaways

  • Delaware service of process is the official method of notifying a person or business of legal action, ensuring due process rights are protected.
  • Service can be made directly to an individual, a business officer, or a company’s registered agent; if unavailable, the Delaware Secretary of State may accept service.
  • Documents must be served in person, at a home, business, or dwelling, with proof of delivery provided before the court’s return date.
  • LLCs, corporations, and partnerships are all required to maintain a registered agent in Delaware to accept legal papers on their behalf.
  • Failing to maintain a proper registered agent or to respond promptly after service can result in default judgments or other legal consequences.

Delaware service of process takes place any time an individual or a company gives notice of its initial legal action against an individual or a company in the state of Delaware. If you get served, this means you have been notified of someone's intent to sue you or your business. Service of process must be delivered in person to the person being sued or to his or her business's registered agent.

What Is Service of Process?

Any business owners in the state of Delaware should be sure to have a strong understanding of the service of process. Delaware state law requires service of process to be personally delivered to a director or an officer of a corporation registered in the state. If a corporation has a registered agent, the copy of the service of process must be delivered to that entity instead.

If the corporation has chosen another company to act as its registered agent, the service of process can be delivered to the any of the following representatives of this chosen company:

  • President
  • Vice president
  • Secretary
  • Assistant
  • Director

Each service of process has a return date by which the person serving the document must have proof that the documents were properly delivered and received. Delaware requires a service of process that is left at:

  • A home
  • The usual dwelling place
  • A place of business of a director, an officer, or a registered agent of a corporation

The document must be delivered six days or more before the required return date. There must be an adult present to witness the delivery.

Legal Requirements for Service in Delaware

Delaware follows strict rules under its Rules of Civil Procedure and business statutes for proper service of process. For lawsuits filed in Delaware courts, service must generally be:

  • Personal Service: Delivered directly to the defendant or an officer/director of a corporation.
  • Registered Agent Service: If a company has appointed a registered agent, all legal papers must be delivered to that agent instead of company executives.
  • Substituted Service: If the defendant cannot be located, papers may be left at the defendant’s usual residence or place of business with a responsible adult.

For limited liability companies, Delaware Code § 18-105 requires service to be made on the company’s registered agent. If the LLC has no registered agent, service may be delivered to the Delaware Secretary of State, who will forward notice to the business.

Service of process is not only limited to lawsuits. It also applies to subpoenas, summonses, and other time-sensitive court notices.

Serving the Secretary of State

If the person who is responsible for serving the legal process isn't able to do so in the proper manner or time period, the service of process can be delivered to the SOS (Secretary of State). The office of the SOS will receive the service of process on behalf of the business or individual being served.

When a company or an individual chooses to serve the Delaware SOS, he or she will need to pay the correct fees and follow the appropriate steps. All the information needed for serving the SOS is available online. There are different rules and requirements for serving the SOS in different states. Therefore, you'll want to double check before going through with the process to ensure it's effective.

If you follow the steps and pay the fees, the service of process to the SOS will likely be effective. Once the SOS has been served on behalf of the individual or the company being sued, it will notify that party via mail with a letter to the business. This letter will be sent to the company's usual place of business, which should be on file with the SOS. If the business did not provide an address when it registered with the state, the SOS will send the letter to its registered agent.

Timeframes and Proof of Service

In Delaware, each service of process comes with a return date, which is the deadline by which proof of service must be filed with the court. Process servers must demonstrate that documents were delivered at least six days before the return date.

Proof may include:

  • An affidavit signed by the process server.
  • Identification of the date, time, and location of delivery.
  • The name of the individual who accepted the papers.

If service is made through the Secretary of State, the SOS will forward a copy of the papers to the defendant’s last known business address or to its registered agent. This ensures that companies cannot avoid lawsuits by failing to maintain a valid agent or by concealing their location.

Registered Agent

All businesses that register with the SOS in Delaware are required to file information for a registered agent. This helps to ensure that service of process is most effective and efficient between Delaware businesses.

The main purpose of a registered agent is to receive all legal documentation, especially service of process, on behalf of a company. To make sure they are available to receive such documents in a timely manner, registered agents are required to hold regular business hours throughout the week. There should always be a representative available to accept documents during the normal hours of the workday each day of the week.

Once the registered agent receives documents for the company he or she will represent, the registered agent needs to forward them to the company they are meant for as quickly as possible. Failure to do so can easily lead to additional legal trouble for the company being served.

Delaware business owners should take their registered agent selection seriously. Technically, any adult with a Delaware address can act as a registered agent, but it is wise to choose an agent with experience and a good reputation.

A company can choose one of its own members as a registered agent. However, it's a good idea to keep the office of a registered agent separate from the company's main place of business. It doesn't do much good for a business to be receiving service of process documents in front of its customers or clients.

Consequences of Improper Service

Improper service of process in Delaware can have serious implications:

  • Delay of Case: If service is deemed invalid, the court may dismiss or delay the case until proper service is achieved.
  • Default Judgment: If a defendant is properly served but fails to respond within the required timeframe, the court may enter judgment by default.
  • Liability for Registered Agents: If a registered agent fails to forward documents promptly, the business may suffer penalties or miss critical deadlines.

For business owners, failing to keep a registered agent in good standing can result in the company being marked as “not in good standing” with the Delaware Secretary of State, leading to additional fines or dissolution of the entity

Frequently Asked Questions

1. Who can serve process in Delaware?

Service may be performed by a sheriff, deputy, or a professional process server authorized by the court.

2. Can service of process be done by mail in Delaware?

In some cases, certified mail may be permitted, but personal delivery remains the standard requirement under Delaware law.

3. What happens if a Delaware business has no registered agent?

The Secretary of State will act as the agent of last resort and accept service, forwarding documents to the business’s last known address.

4. How much time does a defendant have to respond after service?

The timeframe depends on the type of case, but in civil matters, defendants typically have 20 days to respond after being served.

5. Can I act as my own registered agent in Delaware?

Yes, if you are a Delaware resident with a physical address in the state, but most businesses hire professional agents to ensure reliability and privacy.

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