How to Prove You Were Not Served Properly

When you’re hit with a lawsuit, one of the first things the court must do is make sure you’re notified. That’s what service of process is for—it’s the legal way of letting you know you’re being sued. But if the service wasn’t done right, it can throw the whole case into question. In Florida, this is a big deal because improper service can cause a case to be delayed or even dismissed.

For example, in Kozinski v. Phillips, a $450,000 judgment was thrown out because the service wasn’t done properly. This shows that if you weren’t served the right way, the courts might not even have the authority to rule on the case.

What Does 'Served Properly' Mean?

When it comes to getting served in Florida, there’s no room for error. The law lays it out plain and simple: you need to be handed those papers directly, or they need to go to someone at your home who's at least 15. If that process server doesn't show up with the right papers, at the right place, and at the right time, then guess what? It’s like they never showed up at all. And that means the court can’t just bulldoze ahead with the case.

This isn't just nitpicking. We're talking about your legal rights here—stuff that could make or break your case. If they didn’t follow every single step, they didn’t serve you. You could be sitting on gold, like in Morales v. Sperry Rand, where the courts tossed out a case because the service wasn’t done within the legal timeframe. It’s that serious. So, check that paperwork like your future depends on it because, legally, it just might.

Common Mistakes in Serving

In Florida, there are strict rules for serving legal documents, and many people handling these documents still make common errors. Some of the most frequent mistakes include:

• Serving the wrong person: Documents need to be handed directly to you, or someone over 15 who lives at your address. If they were given to someone who doesn’t meet that criteria, that’s improper service.
• Incorrect address: If the papers were delivered to an old address or a place you never lived, the service isn’t valid.
• Wrong timing: The documents must be served within a specific time frame. For instance, if the process server failed to deliver them within 120 days of filing the lawsuit, the court may dismiss the case.

If any of these mistakes apply, you could have grounds to challenge the service. The key is to document what actually happened—keep records of your whereabouts, get witnesses, and look for evidence that shows where and when the papers were delivered.

Signs You Were Not Served Properly

If you suspect you weren’t served properly, there are clear indicators to watch for. First, ask yourself: did the documents actually reach your hands? Under Florida law, service of process must be done personally or by leaving the documents with someone who lives with you and is at least 15 years old. If the papers were handed off to someone else—like a co-worker or a random person who happened to be at your house—then the service wasn’t valid.

Next, examine the documents themselves. Florida law requires specific information to be included in the paperwork, like when and where the service happened. If any of those details are missing, such as a blank space where the date should be, that’s a red flag. Errors like these aren’t just small mistakes—they can completely undermine the legitimacy of the service.

Another sign is if the process server made little effort to track you down. Florida courts take due diligence seriously, which means the server should have made multiple attempts to serve you in person before resorting to alternatives like leaving the papers with someone else or posting them at your residence. If the server only tried once or skipped the necessary steps, that can be enough to challenge the service.

Finally, consider whether you have physical evidence that contradicts the process server’s claims. Maybe you have security footage showing no one came to your door when the papers were supposedly served. Or perhaps you were out of town at the time and can prove it with travel records. This type of evidence is crucial if you plan to argue improper service, as the burden of proof will often fall on you.

How to Gather Proof of Improper Service

If you believe you weren’t served properly, proving it is the next step. It’s not enough to say, "I never got the papers"—you’ll need solid evidence to back up your claim. Start by documenting everything: where you were when you were supposedly served, who was with you, and any communication you received from the court. If the papers were left with someone else, get a written statement from them confirming the details.

Physical evidence is also important. For instance, if you have security cameras, check the footage for the time and date when the service supposedly occurred. If the process server claimed they came by, but your cameras show no one did, that’s strong evidence to present to the court.

You should also gather any documents related to the service. The process server is required to file an affidavit detailing when, where, and how they served you. If there’s a mismatch between their affidavit and your records—such as conflicting dates or locations—that’s another piece of the puzzle. Additionally, if the server used alternative methods like posting the papers at your home, they need to document multiple failed attempts to serve you in person first. If they skipped that step, it’s a big problem for their case and a major opportunity for yours.

Filing a Motion to Dismiss Based on Improper Service

Once you’ve gathered enough proof, the next step is to file a motion to dismiss. In Florida, this motion tells the court that you weren’t properly served, and it asks them to either dismiss the case or push the reset button on the whole process. It’s a straightforward filing, but you have to act quickly—don’t wait too long after discovering the issue, or the court may assume you’re just trying to delay things.

To file the motion, you’ll need to fill out the necessary forms, which you can get from the Florida courts’ website or the local courthouse. In your motion, clearly state why you believe the service was improper. Attach any evidence you’ve gathered—security footage, witness statements, or inconsistencies in the process server’s affidavit. The more detailed and organized your proof, the better.

After filing the motion, you’ll likely get a hearing scheduled. This is where you’ll present your case in front of a judge. Keep your argument simple: focus on the facts, show your evidence, and explain how the service didn’t follow Florida’s legal requirements. 

What Happens After You File?

Once you file your motion to dismiss based on improper service, the court will schedule a hearing. At this hearing, you’ll have the chance to present your evidence—security footage, witness statements, and any other proof that shows you weren’t served properly. The judge will review everything and make a decision.

If the court agrees with you, they might dismiss the case entirely or give the other party a chance to serve you correctly. In some situations, the case could be delayed until proper service happens. Either way, getting the service issue addressed puts you back in control. The last thing you want is a default judgment because you didn’t know about the lawsuit in the first place.

If the court sides with the plaintiff, the case moves forward, and you’ll have to defend against it. But by raising the improper service issue early, you show that you’re paying attention and ready to fight.

Stay on Top of Your Rights

At the end of the day, if you weren’t properly served, it’s not just a minor error—it’s something that can affect the whole outcome of your case. Don’t ignore any red flags. Whether it’s a wrong address, a missed detail on the paperwork, or no attempt to serve you in person, these are all reasons to challenge the service.

Having solid evidence and filing the right motions can protect yourself from being blindsided in court. Always stay on top of deadlines and keep detailed records. If you catch the mistake early, you might save yourself a lot of trouble down the road.