In many states, like Arkansas, the time for service is fairly simple: you have 120 days from the issuance of the Summons to serve the Defendant. If you are getting close to the 120 day time limit for service, you should file a motion to extend the time for service, and make sure that you receive and file an order granting the motion prior to the running of the 120 days. Otherwise, the case is in jeopardy of being dismissed. This can be a fatal error if the statute of limitations has run (but see the Arkansas savings statute codified at Ark. Code Ann. §16-56-126). The time frame is the same in federal court.
Texas Time limits for service
However, the rules are somewhat different in Texas. Once suit is filed in Texas, you must immediately begin using “due diligence” in locating and serving the Defendant. While not mandatory in Texas, if you are unable to locate a Defendant, I would file a periodic motion to extend the time for service along with a request for a status conference regarding service with the court. These are not mandatory in Texas by any means, but it provides you with a trail of showing due diligence in attempting to locate a Defendant. In addition to the motion, attach affidavits as exhibits which have been executed by (1) the Plaintiff’s attorney, (2) the law firm staff member assigned to this case, and (3) a private investigator, if necessary, providing an oath in each that you have determined that the Defendant is a non-resident and that you have used due diligence in attempting to locate and serve the Defendant (and the steps taken to show due diligence).
Texas Motion for Service by Publication
If you have exhausted all resources in attempting to locate and serve the Defendant, you should then file a Motion for Service by Publication, which will be the topic of next week’s blog. And as always, while this article focuses on the time limits for service, you should pay particular attention to the methods of service authorized in your jurisdiction, because it doesn’t matter if service was completed timely if it wasn’t perfected in an authorized manner. Defendants thrive on attempting to have cases dismissed on a technicality, and service is a ripe tree for dismissal on technicalities if it isn’t conducted in a strict adherence to the rules.
For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in cases just like yours.
