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Legal Memorandum: Claim of Insufficient Service of Process

Issue: Who bears the burden of proof on a claim of insufficient service of process?

Area of Law: Litigation & Procedure
Keywords: Claim of insufficient service of process; Burden of proof
Jurisdiction: Federal, Florida
Cited Cases: 510 F. Supp. 2d 1053; 206 A.2d 1; 975 So. 2d 511
Cited Statutes: None
Date: 11/01/2008

The federal District Court for the Southern District of Florida recently addressed an argument regarding defective service of process from the defendant in Carran v. Morgan, 510 F. Supp. 2d 1053 (S.D. Fla. 2007).  The defendant asserted that he “was not properly served, but . . . provide[d] no evidence in support of th[e] motion [to dismiss].”  Id. at 1057.  In contrast, the plaintiff presented a sworn return of service attesting that the individual defendant was personally served.  Id.  Under Florida law, “[a] return of service that is regular on its face is presumed to be valid unless clear and convincing evidence is presented to the contrary.”  Haueter-Herranz v. Romero, 975 So. 2d 511, 518 (Fla. Dist. Ct. App. 2008).  Accord Hollinger v. Hollinger, 206 A.2d 1, 3 (Pa. 1965); Robins v. Garvine, 136 A.2d 549, 551-52 (Del. 1957).  Based on the defendant’s failure in Carran to rebut the affidavit of service on him individually, the court denied the motion to dismiss for insufficient service of process.  510 F. Supp. 2d at 1057. 

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